Exhibit 1.4
UNDERWRITING AGREEMENT
(Capital Securities)
September 17, 1998
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
International Paper Capital Trust III
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Dear Sirs:
We, Morgan Stanley & Co. Incorporated (the "Manager"), are acting on
behalf of the underwriters (including ourselves) named below (such underwriter
or underwriters being herein called the "Underwriters"), and we understand that
International Paper Capital Trust III (the "Issuer Trust"), a statutory business
trust created under the Delaware Business Trust Act pursuant to the filing of a
Certificate of Trust (the "Certificate of Trust") with the Secretary of State of
the State of Delaware, proposes to issue and sell 28,000,000 International Paper
Capital Trust III 7 7/8% Capital Securities (the "Firm Capital Securities"). The
Issuer Trust also proposes to issue and sell to the several Underwriters not
more than an additional 4,200,000 Capital Securities (the "Additional Capital
Securities") if and to the extent that we, as Manager of the offering, shall
have determined to exercise, on behalf of the Underwriters, the right to
purchase such Additional Capital Securities granted to the Underwriters herein.
The Firm Capital Securities and the Additional Capital Securities are
hereinafter collectively referred to as the "Offered Capital Securities."
It is understood that substantially contemporaneously with the closing
of the sale of the Offered Capital Securities to the Underwriters contemplated
hereby, (i) the Issuer Trust, International Paper Company (the "Company"), The
Bank of New York, as property trustee (the "Property Trustee"), The Bank of New
York (Delaware), as Delaware trustee (the "Delaware Trustee" and, together with
the Property Trustee, the "Issuer Trustees") and three individuals who are
employees or officers of or who are affiliated with the Company (the "Regular
Trustees") shall enter into an Amended and Restated Declaration of Trust in
substantially the form of the Form of the Amended and Restated Declaration of
Trust attached as Exhibit 4.l1 to the Registration Statement referred to below
(the "Declaration"), pursuant to which the Issuer Trust shall (x) issue and sell
the Offered Capital Securities to the Underwriters pursuant hereto and (y) issue
865,980 shares of its common securities (the "Common Securities" and, together
with the Offered Capital Securities, the "Trust Securities") to the Company, in
each case with
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such rights and obligations as shall be set forth in such Declaration, (ii)
the Company and The Bank of New York, will act as trustee (the "Debt
Securities Trustee") for purposes of the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), pursuant to a Subordinated Debt
Indenture, dated as of September 15, 1998, as supplemented by the First
Supplemental Indenture thereto between the Company and the Debt Securities
Trustee, dated as of September 24, 1998 (as so supplemented, the
"Subordinated Debt Indenture"), which shall provide for the issuance of
$721,649,500 ($829,896,925 in the event that the Underwriters exercise in
full their right to purchase Additional Capital Securities) principal amount
of the Company's 7 7/8% Junior Subordinated Deferrable Interest Debentures
due December 1, 2038, (the "Subordinated Debentures"), (iii) the Company
shall sell such Subordinated Debentures to the Issuer Trust and the Issuer
Trust shall purchase such Subordinated Debentures with proceeds from the sale
of the Offered Capital Securities to the Underwriters contemplated hereby and
of the Common Securities to the Company and (iv) for the benefit of holders
of the Offered Capital Securities from time to time the Company and The Bank
of New York, as guarantee trustee (the "Guarantee Trustee"), shall enter into
a Guarantee Agreement in substantially the form of the Form of the Guarantee
Agreement attached as Exhibit 4.13 to the Registration Statement referred to
below (the "Guarantee"), pursuant to which the Company shall, as set forth in
such Guarantee Agreement, guarantee the payment of distributions and amounts
payable on liquidation or redemption of the Offered Capital Securities.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Issuer Trust hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Firm
Capital Securities set forth opposite their names on Schedule I hereto at a
purchase price of $25 per Firm Capital Security, (the "Purchase Price");
provided, that the Company shall pay to the Underwriters compensation equal to
$0.7875 per Firm Capital Security.
Subject to the terms and conditions set forth herein, the Issuer Trust
hereby agrees to sell to the Underwriters the Additional Capital Securities and
the Underwriters shall have a one-time right to purchase, severally and not
jointly, up to 4,200,000 Additional Capital Securities at the Purchase Price
plus accrued dividends, if any, from and including September 24, 1998 to the
date of payment and delivery; provided, that the Company shall pay to the
Underwriters compensation equal to $0.7875 per Additional Capital Security.
Additional Capital Securities may be purchased as provided herein solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Capital Securities. If any Additional Capital Securities are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Capital Securities (subject to such adjustments to
eliminate fractional Additional Capital Securities as you may determine) that
bears the same proportion to the total number of Additional Capital Securities
to be purchased as the number of Firm Capital Securities set forth in Schedule I
opposite the name of such Underwriter bears to the total number of Firm Capital
Securities.
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The Underwriters will pay for the Firm Capital Securities upon delivery
thereof at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 919 Third
Avenue, New York, New York at 10:00 a.m. (New York time) on September 24, 1998,
or at such other time, not later than 5:00 p.m. (New York time) on October 1,
1998, as shall be designated by us. The time and date of such payment and
delivery are hereinafter referred to as the "Closing Date."
Payment for any Additional Capital Securities shall be made to the
Issuer Trust in immediately available funds at the offices referred to above on
such date (which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor later than ten business days after the giving
of the notice hereinafter referred to) as shall be designated in a written
notice from us to the Company of our determination, on behalf of the
Underwriters, to purchase a number, specified in said notice, of Additional
Capital Securities, or on such other date, in any event not later than October
24, 1998, as shall be designated in writing by us. The time and date of such
payment are hereinafter referred to as the "Option Closing Date." The notice of
the determination to exercise the option to purchase Additional Capital
Securities and of the Option Closing Date may be given at any time within 30
days after the date of this Agreement.
The several obligations of the Underwriters to purchase Additional
Capital Securities hereunder are subject to the delivery to us on the Option
Closing Date of such documents as we may reasonably request with respect to the
good standing of the Company and the Issuer Trust, the due authorization and
issuance of the Additional Capital Securities and other matters related to the
issuance of the Additional Capital Securities.
The Company and the Issuer Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to the Offered Capital Securities and the Guarantee
(collectively, the "Securities") and have filed with the Commission, a
Prospectus Supplement, dated September 17, 1998 (the "Prospectus Supplement"),
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), specifically relating to the Securities offered pursuant to
this Agreement. The term "Registration Statement" means the registration
statement (File No. 333-62661) filed on September 1, 1998, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term preliminary
prospectus means a preliminary prospectus supplement specifically relating to
the Offered Capital Securities, together with the Basic Prospectus. As used
herein, the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus"
shall include in each case the documents, if any, incorporated by reference
therein. The terms "supplement," "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the Prospectus
that are filed subsequent to the date of the Basic Prospectus by the Company
with the Commission pursuant to the Securities Exchange Act of 1934,
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as amended (the "Exchange Act"). The Offered Capital Securities shall have the
terms set forth in the Prospectus, dated September 10, 1998, and the Prospectus
Supplement, dated September 17, 1998, including the following:
Terms of Offered Capital Securities
Designation of the Series
of Capital Securities: 7 7/8% Capital Securities.
Issuer of Offered
Capital Securities: International Paper Capital Trust III.
Aggregate Number of
Capital Securities: 28,000,000 (32,200,000, if the
Underwriters' over-allotment option
is exercised in full).
Price to Public: $25.
Purchase Price: $25.
Underwriters' Compensation
per Capital Security: $0.7875.
Selling Concession: $0.50.
Reallowance: $0.45.
Closing Date: September 24, 1998.
Form: Book-Entry.
Other Terms:
Maturity Date: December 1, 2038, subject to
advancement under certain
circumstances to a date no earlier
than December 1, 2013.
Liquidation Amount: $25.
Distributions: 7 7/8% per annum.
Distribution Payment
Dates: March 1, June 1, September 1 and
December 1 of each year, commencing
December 1, 1998.
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Redemption: Redeemable prior to maturity at the
option of the Company (i) on or
after September 24, 2003, in whole
at any time, or in part from time to
time, and (ii) prior to September
24, 2003, in whole (but not in part)
at any time within 90 days following
the occurrence and continuation of a
Tax Event or an Investment Company
Event, in each case, at par.
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
1. Representations and Warranties. Each of the Company and the Issuer
Trust specified in the Underwriting Agreement jointly and severally represents
and warrants to each of the Underwriters as of the date of this Agreement:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain and
each such part, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement and the Prospectus comply, and, as amended or
supplemented, if applicable, will comply, in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder and (iv) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this Section 1(b) do
not apply (A) to statements or omissions in the Registration Statement or the
Prospectus based upon information concerning any Underwriter furnished to the
Company in writing by such Underwriter through the Manager expressly for use
therein or (B) to those parts of the Registration Statement that constitute the
Statements of Eligibility (Form T-1) under the Trust Indenture Act of the
trustees referred to in the Registration Statement.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New York, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each
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jurisdiction in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material adverse effect
on the Company and its consolidated subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or
formed, is validly existing in good standing under the laws of the jurisdiction
of its incorporation or formation, has the corporate or other power and
authority to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole.
(e) The Issuer Trust has been duly created and is validly existing in
good standing as a business trust under the Delaware Business Trust Act, is a
"grantor trust" for United States Federal income tax purposes, has the power and
authority to conduct its business as presently conducted and as described in the
Prospectus and is not required to be authorized to do business in any other
jurisdiction.
(f) This Agreement has been duly authorized, executed and delivered by
each of the Issuer Trust and the Company.
(g) The Subordinated Debt Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed and delivered by the
Company and assumed by the Company; and the Subordinated Debt Indenture is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as the enforceability thereof (i) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting creditors' rights generally and (ii) is subject to general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(h) The Subordinated Debentures have been duly authorized by the
Company and, when executed and authenticated in accordance with the provisions
of the Subordinated Debt Indenture, and delivered to and paid for as described
in the Prospectus, will be entitled to the benefits of the Subordinated Debt
Indenture, and will be valid and binding obligations of the Company, enforceable
in accordance with their terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law.
(i) The Guarantee has been qualified under the Trust Indenture Act and
has been duly authorized by the Company and, upon execution and delivery thereof
by the
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Company (and assuming due authorization, execution and delivery by the Guarantee
Trustee), will, as of the Closing Date, be a valid and binding agreement of the
Company, enforceable in accordance with its terms except as the enforceability
thereof (i) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity, regardless of
whether such enforceability is considered in a proceeding in equity or at law.
(j) The Declaration has been qualified under the Trust Indenture Act
and has been duly authorized by the Company and the Issuer Trust and, upon
execution and delivery thereof by the Company and the Issuer Trust (and assuming
due authorization, execution and delivery thereof by each party thereto other
than the Company and the Issuer Trust), will, as of the Closing Date, be a valid
and binding agreement of the Company and the Issuer Trust, enforceable in
accordance with its terms except as the enforceability thereof (i) may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting creditors' rights generally and (ii) is subject to
general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law and except as rights to
indemnification may be limited under applicable law.
(k) The Offered Capital Securities have been duly authorized by the
Declaration and, when executed and authenticated in accordance with the
provisions of the Declaration and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be validly issued and
(subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the assets of the Issuer Trust, and the
issuance of such Offered Capital Securities will not be subject to any
preemptive or similar rights. Holders of the Offered Capital Securities will be
entitled to the same limitation of personal liability as that extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. The Common Securities of the Issuer
Trust have been duly authorized by the Declaration and, when issued and
delivered to the Company against payment therefor as described in the
Prospectus, will be validly issued undivided beneficial interests in the assets
of the Issuer Trust, and the issuance of such Common Securities will not be
subject to any preemptive rights.
(l) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Subordinated Debt
Indenture, the Declaration, the Guarantee and the Subordinated Debentures, will
not contravene any provision of applicable law, the Declaration 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 consolidated 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 consolidated subsidiaries, and no
consent, approval, authorization or order of, or qualification with, any
governmental body
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or agency is required for the performance by the Company of its obligations
under this Agreement, the Subordinated Debt Indenture, the Declaration, the
Guarantee and the Subordinated Debentures, 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 Offered Capital Securities; provided, however, that no
representation is made as to whether the purchase of the Offered Capital
Securities constitutes a "prohibited transaction" under Section 406 of the
Employee Retirement Income Security Act of 1974, as amended, or Section 4975 of
the Internal Revenue Code of 1986, as amended.
(m) The execution and delivery by the Issuer Trust of, and the
performance by the Issuer Trust of its obligations under, this Agreement will
not contravene any provision of applicable law or the Declaration or any
agreement or other instrument binding upon the Issuer Trust, or any judgment,
order or decree of any governmental body, agency or court having jurisdiction
over the Issuer Trust, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Issuer Trust of its obligations under this Agreement, 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 Offered Capital Securities;
provided, however, that no representation is made as to whether the purchase of
the Offered Capital Securities constitutes a "prohibited transaction" under 406
of the Employment Retirement Income Security Act of 1974, as amended, or Section
4975 of the Internal Revenue Code of 1986, as amended.
(n) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the Issuer
Trust or the Company and its subsidiaries, taken as a whole, from that set forth
in the Prospectus (exclusive of any amendments or supplements thereto effected
subsequent to the date of this Agreement).
(o) The Issuer Trust is not, and after giving effect to the offering
and sale of the Offered Capital Securities and the application of the proceeds
thereof as described in the Prospectus will not be, an "investment company" as
such term is defined under the Investment Company Act of 1940, as amended.
(p) There are no legal or governmental proceedings pending or
threatened to which the Issuer Trust or the Company or any of its consolidated
subsidiaries is a party or to which any of the properties of the Issuer Trust or
the Company or any of its consolidated 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.
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(q) Each of the Issuer Trust and the Company and its consolidated
subsidiaries has all necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and filings
with, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business in the
manner described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company and its
consolidated subsidiaries, taken as a whole.
2. Public Offering. The Issuer Trust and the Company are advised by the
Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Capital Securities, as soon after this
Agreement has been entered into as in the Manager's judgment is advisable. The
terms of the public offering of the Offered Capital Securities, are set forth in
the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this Section
3, payment for the Offered Capital Securities shall be made by wire transfer to
the Issuer Trust in immediately available funds at the time and place set forth
herein, upon delivery to the Manager for the respective accounts of the several
Underwriters of the Offered Capital Securities in definitive book-entry form,
registered in such names and in such denominations or amounts, as the case may
be, as the Manager shall request in writing not less than one full business day
prior to the date of delivery, with any transfer taxes payable in connection
with the transfer of the Offered Capital Securities to the Underwriters duly
paid.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date,
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of the
Company's securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations of the Company
and its consolidated subsidiaries, taken as a whole, or, the Issuer
Trust, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto effected subsequent to the execution
and delivery of this Agreement), that, in the judgment of the Manager,
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is material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Capital Securities on the
terms and in the manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by the Chief Financial
Officer or the Treasurer of the Company, or any other person authorized
by the Board of Directors of the Company to execute any such written
statement (an "Executive Officer") to the effect set forth in clause
(i) above, and a certificate signed by an Executive Officer and one of
the Regular Trustees to the effect that the representations and
warranties of the Company and the Issuer Trust contained in this
Agreement are true and correct as of the Closing Date and that each of
the Company and the Issuer Trust, as applicable, has complied with all
of the agreements and satisfied all of the conditions on its part to be
performed or satisfied on or before the Closing Date.
The Executive Officer and the Regular Trustee signing and
delivering such certificates may rely upon the best of his or her
knowledge as to proceedings threatened.
(b) The Manager shall have received on the Closing Date an opinion of
James W. Guedry, Vice President, Associate General Counsel and Secretary of the
Company or of other counsel satisfactory to the Manager and who may be an
officer of the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of New York, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its consolidated
subsidiaries, taken as a whole;
(ii) each of the Company and its subsidiaries has all
necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with,
all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to
own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken
as a whole;
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(iii) the Subordinated Debt Indenture has been duly qualified
under the Trust Indenture Act and has been duly authorized, executed
and delivered by the Company, is a valid and binding agreement of the
Company, enforceable in accordance with its terms except in each case
as the enforceability thereof (a) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (b) is subject to
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(iv) the Subordinated Debentures have been duly authorized by
the Company and, when executed and authenticated in accordance with the
provisions of the Subordinated Debt Indenture and delivered to and paid
for as described in the Prospectus, will be entitled to the benefits of
the Subordinated Debt Indenture and will be valid and binding
obligations of the Company, enforceable in accordance with their terms
except as the enforceability thereof (a) may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar
laws affecting creditors' rights generally and (b) is subject to
general principles of equity, regardless of whether such enforceability
is considered in a proceeding in equity or at law;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Guarantee 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 obligation of the Company
enforceable in accordance with its terms except as the enforceability
thereof (a) may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium and other similar laws affecting creditors'
rights generally and (b) is subject to general principles of equity,
regardless of whether such enforceability is considered in a proceeding
in equity or at law;
(vii) the execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement, the
Subordinated Debt Indenture, the Declaration, the Guarantee, and the
Subordinated Debentures do not contravene any provisions 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
agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or, to the best of such counsel's
knowledge, any judgment, order or decree of any governmental body or
agency is required for the performance by the Company of its
obligations under this Agreement, the Subordinated Debt Indenture, the
Declaration, the Guarantee, and the Subordinated Debentures, except as
may be required under the
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securities or blue sky laws of the various states in connection with
the offer and sale of the Offered Capital Securities; provided, however
that such counsel need not express an opinion as to whether the
purchase of the Offered Capital Securities constitutes a "prohibited
transaction" under Section 406 of the Employee Retirement Security Act
of 1974, as amended, or Section 4975 of the Internal Revenue Code of
1986, as amended;
(viii) the Issuer Trust is not and, after giving effect to the
offering and sale of the Offered Capital Securities and the application
of the proceeds thereof as described in the Prospectus, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended;
(ix) the statements (1) in the Basic Prospectus under the
caption "Description of Debt Securities," (2) in the Prospectus
Supplement under the caption "Description of Subordinated Debentures,"
(3) in the Registration Statement under Item 15, (4) in "Item 3 - Legal
Proceedings" of the most recent annual report on Form 10-K incorporated
by reference in the Prospectus and (5) in "Item 1 - Legal Proceedings"
of Part II of the quarterly reports on Form 10-Q, if any, filed since
such annual report and incorporated by reference in the Prospectus, 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;
(x) after due inquiry, such counsel does not know of any legal
or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries or the Issuer Trust is a party
or to which any of the properties of the Company or any of its
consolidated subsidiaries or the Issuer Trust is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or of any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not
described, filed or incorporated by reference as required; and
(xi) such counsel (1) is of the opinion that each document, if
any, filed pursuant to the Exchange Act and incorporated by reference
in the Registration Statement and the Prospectus (except as to
financial statements and schedules included therein as to which such
counsel need not express any opinion) complied when so filed as to form
in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (2) has no reason to
believe that any part of the Registration Statement (except as to
financial statements and schedules included therein, as to which such
counsel need not express any belief, and except for that part of the
Registration Statement that
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constitutes Forms T-1), on the date such part became effective
contained, and the Registration Statement (except as to financial
statements and schedules included therein, as to which such counsel
need not express any belief, and except for the part of the
Registration Statement that constitutes Forms T-1) as of the date such
opinion is delivered contains any untrue statement of a material fact
or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (3)
is of the opinion that the Registration Statement and the Prospectus
(except as to financial statements and schedules included therein, as
to which such counsel need not express any opinion) comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder and (4) has no
reason to believe that the Prospectus (except as to financial
statements and schedules included therein as to which such counsel need
not express any belief) as of the date such opinion is delivered
contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) The Manager shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Underwriters,
dated the Closing Date, in agreed form.
(d) The Manager shall have received on the Closing Date an opinion
dated the Closing Date of Skadden, Arps, Slate, Meagher & Flom LLP, special
Delaware counsel for the Issuer Trust and special tax counsel to the Company, or
of other counsel satisfactory to the Manager, in agreed form.
(e) The Underwriters shall have received (A) on the date of this
Agreement a letter, dated the date of this Agreement, and (B) on the Closing
Date a letter, dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent auditors, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Prospectus.
(f) On the Closing Date, counsel for the Underwriters shall have been
furnished with such additional documents and opinions as they may require for
the purpose of enabling them to pass upon the issuance and sale of the Offered
Capital Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained and all proceedings taken by the Company and the
Issuer Trust in connection with the issuance and sale of the Offered Capital
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Manager and counsel for the Underwriters.
13
5. Covenants of the Company and the Issuer Trust. In further
consideration of the agreements of the Underwriters contained herein, each of
the Company and the Issuer Trust covenants as follows:
(a) To furnish the Manager, without charge, a conformed copy of the
Registration Statement (including exhibits and all amendments thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto or
to the Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement or the
Prospectus with respect to the Offered Capital Securities, to furnish to the
Manager a copy of each such proposed amendment or supplement and not to file any
such proposed amendment or supplement to which the Manager reasonably objects.
(c) If, during such period after the first date of the public offering
of the Offered Capital Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in connection
with sales by an Underwriter or dealer, any event shall occur or condition exist
as a result of which it is necessary to amend or supplement the Prospectus in
order to make the statements therein, in the light of the circumstances existing
when the Prospectus is delivered to a purchaser, not misleading, or if in the
opinion of counsel for the Underwriters, it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses the
Manager will furnish to the Company) to which Offered Capital Securities may
have been sold by the Manager on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the Prospectus,
satisfactory in all respects to the Manager, so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented, will comply
with law and to cause such amendments or supplements to be filed promptly with
the Commission.
(d) To endeavor to qualify the Offered Capital Securities and the
Guarantee for offer and sale under the securities or blue sky laws of such
jurisdictions as the Manager shall reasonably request and to maintain such
qualifications for as long as the Manager shall reasonably request.
(e) To make generally available to the Company's security holders and
to the Manager as soon as practicable an earning statement covering a twelve
month period beginning on the first day of the first full fiscal quarter after
the date of the Underwriting Agreement, which earning statement shall satisfy
the provisions of Section 11(a) of the
14
Securities Act and the rules and regulations of the Commission thereunder. If
such fiscal quarter is the first fiscal quarter of the Company's fiscal year,
such earning statement shall be made available not later than 90 days after the
close of the period covered thereby and in all other cases shall be made
available not later than 45 days after the close of the period covered thereby.
(f) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, not to offer, sell, contract to
sell or otherwise dispose of any securities with characteristics similar to
those of the Offered Capital Securities (other than the Offered Capital
Securities), without the prior consent of the Manager.
(g) Whether or not any sale of Offered Capital Securities is
consummated, to pay all expenses incident to the performance of the Company's
and the Issuer Trust's obligations under this Agreement, including: (i) the
preparation and filing of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and delivery
of the Offered Capital Securities, (iii) the fees and disbursements of the
Company's counsel and accountants, of the Issuer Trust's counsel and of the
Issuer Trustees and their counsel, (iv) the qualification of the Offered Capital
Securities and the Guarantee under securities or blue sky laws in accordance
with the provisions of Section 6(d), including filing fees and the fees and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any blue sky or Legal Investment Memoranda,
(v) the printing and delivery to the Underwriters in quantities as hereinabove
stated of copies of the Registration Statement and all amendments thereto and of
the Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of any blue sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Offered Capital Securities, (viii) any expenses incurred by the Company or the
Issuer Trust in connection with a "road show" presentation to potential
investors, (ix) all document production charges of counsel to the Underwriters
and (x) any filing fees in connection with any review of the offering of the
Offered Capital Securities by the National Association of Securities Dealers,
Inc.
6. Indemnification and Contribution. Each of the Company and the Issuer
Trust jointly and severally, agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or allegedly untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary Prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses,
15
claims, damages or liabilities are caused by any such untrue statement or
omission or allegedly untrue statement or omission based upon information
relating to any Underwriter furnished to the Company or the Issuer Trust in
writing by such Underwriter through the Manager expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Capital Securities, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if the
Company or the Issuer Trust shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Offered Capital Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Issuer Trust, the Issuer Trustees, the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Issuer Trust or the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company and the Issuer Trust to each
Underwriter, but only with reference to information relating to such Underwriter
furnished to the Company or the Issuer Trust by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary Prospectus, the Prospectus or any amendments or supplements thereto.
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 of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be
16
reimbursed as they are incurred. Such firm shall be designated in writing by the
Manager, in the case of parties indemnified pursuant to the second preceding
paragraph, and by the Company and the Issuer Trust, in the case of parties
indemnified pursuant to the first preceding paragraph. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
sentence of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
To the extent the indemnification provided for in the first or second
paragraph in this Section 6 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Issuer Trust on the one hand
and the Underwriters on the other hand from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Issuer Trust on the one hand and the Underwriters
on the other hand in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Issuer Trust on the one hand and the Underwriters on the other hand in
connection with the offering of the Offered Capital Securities shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Offered Securities (before deducting expenses) received by the Company
and the Issuer Trust and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering price
of the Offered Capital Securities. The relative fault of the Company and the
Issuer Trust on the one hand and of the Underwriters on the other hand shall be
17
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 and the Issuer
Trust or by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company, the Issuer Trust and the Underwriters 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 the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Capital Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
allegedly untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the respective amounts of Offered Capital Securities purchased by each of
such Underwriters and not joint. 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. Termination. This Agreement shall be subject to termination by
notice given by the Manager to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the
case may be, any of the New York Stock Exchange, the American Stock Exchange,
the National Association of Securities Dealers, Inc., the Chicago Board of
Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of
Trade, (ii) trading of any securities of the Company or, the Issuer Trust
shall have been suspended on any exchange or in any over-the-counter market,
(iii) a general moratorium on commercial banking activities in New York shall
have been declared by either Federal or New York State authorities, or (iv)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment
of the Manager, is material and adverse, and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event, singly or
together with any other such event, makes it, in the judgment of the Manager,
impracticable to market the Offered Capital Securities on the terms and in
the manner contemplated in the Prospectus.
18
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, as the case may be, any one or more of the Underwriters shall fail
or refuse to purchase Offered Capital Securities that it has or they have agreed
to purchase under this Agreement on such date, and the aggregate number of
Offered Capital Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate number of the Offered Capital Securities to be purchased on such date,
the other Underwriters shall be obligated severally in the proportions that the
number of Firm Capital Securities set forth opposite their respective names in
Schedule I to this Agreement bears to the aggregate number of Firm Capital
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the Offered
Capital Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Offered Capital Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an amount
in excess of one-ninth of such number of Offered Capital Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Capital Securities and
the aggregate number of Additional Capital Securities with respect to which such
default occurs is more than one-tenth of the aggregate number of Additional
Capital Securities to be purchased, and arrangements satisfactory to us and the
Company for the purchase of such Additional Capital Securities are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Issuer Trust. In any such case either the Manager or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement and in
the Prospectus or in any other documents or arrangements may be effected. If, on
the Option Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Additional Capital Securities and the aggregate number of Additional
Capital Securities with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Capital Securities to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation to purchase Additional Capital Securities or (ii)
purchase not less than the number of Additional Capital Securities that such
non-defaulting Underwriters would have been obligated to purchase in the absence
of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company or the Issuer
Trust to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason the Company or the Issuer Trust shall be unable
to perform its obligations under this
19
Agreement, the Company and the Issuer Trust jointly and severally agree to
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering of the
Offered Capital Securities.
9. Representations and Indemnities to Survive. The respective indemnity
and contribution agreements and the representations, warranties and other
statements of the Issuer Trust the Company, its officers and the Underwriters
set forth in this Agreement will remain in full force and effect, regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person controlling the
Company or on behalf of the Issuer Trust, the Issuer Trustees or any person
controlling the Issuer Trust and (iii) acceptance of and payment for any of the
Offered Capital Securities.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and Issuer Trustees and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
20
Please confirm your agreement by having an authorized officer sign a copy of
this Agreement in the space set forth below.
Very truly yours,
MORGAN STANLEY & CO.
INCORPORATED
MERRILL LYNCH, PIERCE
FENNER & SMITH INCORPORATED
A.G. EDWARDS & SONS, INC.
PAINEWEBBER INCORPORATED
PRUDENTIAL SECURITIES
INCORPORATED
SALOMON SMITH BARNEY INC.
On behalf of themselves and the
other Underwriters named herein
By: MORGAN STANLEY & CO.
INCORPORATED
By: /s/ Michael M. Fusco
---------------------------
Name: Michael M. Fusco
Title: Vice President
Accepted:
INTERNATIONAL PAPER COMPANY
By: /s/ E. William Boehmler
------------------------------------
Name: E. William Boehmler
Title: Vice President and Treasurer
INTERNATIONAL PAPER COMPANY CAPITAL TRUST III
By: International Paper Company, as
Depositor
By: /s/ Robert C. McPhillips
------------------------------------
Name: Robert C. McPhillips
Title: Regular Trustee
21
Schedule I
Number of
Firm Capital Securities
Underwriter To Be Purchased
- ----------- ---------------
MORGAN STANLEY & CO. INCORPORATED................................................................ 3,466,000
MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED................................................ 3,463,000
A.G. EDWARDS & SONS, INC......................................................................... 3,463,000
PAINEWEBBER INCORPORATED......................................................................... 3,463,000
PRUDENTIAL SECURITIES INCORPORATED............................................................... 3,463,000
SALOMON SMITH BARNEY INC......................................................................... 3,463,000
CREDIT SUISSE FIRST BOSTON CORPORATION........................................................... 1,400,000
GOLDMAN, SACHS & CO.............................................................................. 1,400,000
J.P. MORGAN SECURITIES INC....................................................................... 1,400,000
BEAR, STEARNS & CO. INC............................................................................ 116,500
BT ALEX BROWN INCORPORATED......................................................................... 116,500
CIBC OPPENHEIMER CORP.............................................................................. 116,500
SG COWEN SECURITIES CORPORATION.................................................................... 116,500
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION................................................ 116,500
SCHRODER & CO. INC................................................................................. 116,500
ADVEST, INC......................................................................................... 58,000
ROBERT W. BAIRD & CO. INCORPORATED.................................................................. 58,000
BANCAMERICA SECURITIES, INC......................................................................... 58,000
WILLIAM BLAIR & COMPANY, L.L.C...................................................................... 58,000
BLAYLOCK & PARTNERS, L.P............................................................................ 58,000
J.C. BRADFORD & CO.................................................................................. 58,000
CRAIGIE INCORPORATED................................................................................ 58,000
CROWELL, WEEDON & CO................................................................................ 58,000
DAIN RAUSCHER WESSELS............................................................................... 58,000
DAVENPORT & COMPANY LLC............................................................................. 58,000
FAHNESTOCK & CO. INC................................................................................ 58,000
FERRIS, BAKER WATTS, INCORPORATED................................................................... 58,000
FIDELITY CAPITAL MARKETS
A DIVISION OF NATIONAL FINANCIAL SERVICES CORPORATION............................................. 58,000
FIFTH THIRD/THE OHIO COMPANY........................................................................ 58,000
FIRST ALBANY CORPORATION............................................................................ 58,000
FIRST OF MICHIGAN CORPORATION....................................................................... 58,000
GIBRALTAR SECURITIES CO............................................................................. 58,000
J.J.B. HILLIARD, W.L. LYONS, INC.................................................................... 58,000
INTERSTATE/JOHNSON LANE CORPORATION................................................................. 58,000
JANNEY MONTGOMERY SCOTT INC......................................................................... 58,000
JWGENESIS SECURITIES, INC........................................................................... 58,000
KIRKPATRICK, PETTIS, SMITH, POLAN INC............................................................... 58,000
LEGG MASON WOOD WALKER, INCORPORATED................................................................ 58,000
22
Number of
Firm Capital Securities
Underwriter To Be Purchased
- ----------- ---------------
MCDONALD & COMPANY SECURITIES, INC.................................................................. 58,000
MESIROW FINANCIAL, INC.............................................................................. 58,000
MORGAN KEEGAN & COMPANY, INC........................................................................ 58,000
OLDE DISCOUNT CORPORATION........................................................................... 58,000
PIPER JAFFRAY INC................................................................................... 58,000
RAYMOND JAMES & ASSOCIATES, INC..................................................................... 58,000
THE ROBINSON-HUMPHREY COMPANY, LLC.................................................................. 58,000
RONEY CAPITAL MARKETS A DIVISION OF FIRST CHICAGO................................................... 58,000
SCOTT & STRINGFELLOW, INC........................................................................... 58,000
MURIEL SIEBERT & CO., INC........................................................................... 58,000
STERNE, AGEE & LEACH, INC........................................................................... 58,000
STIFEL, NICOLAUS & COMPANY, INCORPORATED............................................................ 58,000
SUTRO & CO. INCORPORATED............................................................................ 58,000
TUCKER ANTHONY INCORPORATED......................................................................... 58,000
UTENDAHL CAPITAL PARTNERS, L.P...................................................................... 58,000
WEDBUSH MORGAN SECURITIES........................................................................... 58,000
WHEAT FIRST SECURITIES, INC......................................................................... 58,000
------
Total........................................................................................... 28,000,000
23