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EXHIBIT 1.2
[ - ] SHARES
KEEBLER FOODS COMPANY
COMMON STOCK ($0.01 PAR VALUE)
FORM OF SUBSCRIPTION AGREEMENT
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London, England
[ - ]
To: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
[ - ]
c/o: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED ("CSFBL")
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs:
1. Introductory. The stockholders listed in Schedule B hereto (the
"Selling Stockholders") propose severally to sell (the "International Offering")
to the several Managers named in Schedule A hereto (the "Managers") an aggregate
of [ - ] outstanding shares (the "International Firm Securities") of the Common
Stock, $0.01 par value per share (the "Securities") of Keebler Foods Company, a
Delaware corporation (the "Company"), and also propose to sell to the Managers
and the U.S. Underwriters (as defined) an option, exercisable by CSFBC (as
defined below), for an aggregate of not more than [ - ] additional outstanding
shares (the "Optional Securities") of the Company's Securities as set forth
below. The International Firm Securities and the Optional Securities that may be
sold to the Managers are herein collectively called the "International
Securities".
It is understood that the Company and the Selling Stockholders are
concurrently entering into an Underwriting Agreement, dated the date hereof (the
"Underwriting Agreement"), with certain United States underwriters listed in
Schedule A thereto (the "U.S. Underwriters"), for whom Credit Suisse First
Boston Corporation ("CSFBC"), [ - ] are acting as representatives (the "U.S.
Representatives"), relating to the concurrent offering and sale of an aggregate
of [ - ] shares of Securities (the "U.S. Firm Securities") in the United States
and Canada (the "U.S. Offering"), which together with the Optional Securities
that may be sold to the U.S. Underwriters in the United States and Canada are
hereinafter called the "U.S. Securities". The International Firm Securities and
the U.S. Firm Securities are collectively referred to as the "Firm Securities".
The International Securities and the U.S. Securities are collectively referred
to as the "Offered Securities". To provide for the coordination of their
activities, the Managers and the U.S. Underwriters have entered into an
Agreement between U.S. Underwriters and
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Managers which permits them, among other things, to sell the Offered Securities
to each other for purposes of resale.
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Managers that:
(i) A registration statement on Form S-3 (No. 333-[ - ]) relating
to the Offered Securities, including a form of prospectus, has been
filed with the Securities and Exchange Commission (the "Commission").
The registration statement contains two prospectuses to be used in
connection with the offering and sale of the Offered Securities: the
U.S. prospectus, to be used in connection with the U.S. Offering, and
the international prospectus, to be used in connection with the
International Offering. The international prospectus is identical to
the U.S. prospectus except for the front cover. The registration
statement either (A) has been declared effective under the Securities
Act of 1933 (the "Act"), and is not proposed to be amended or (B) is
proposed to be amended by amendment or post-effective amendment. If
such registration statement (the "initial registration statement") has
been declared effective, either (A) an additional registration
statement (the "additional registration statement") relating to the
Offered Securities may have been filed with the Commission pursuant to
Rule 462(b) ("Rule 462(b)") under the Act and, if so filed, has become
effective upon filing pursuant to such Rule and the Offered Securities
all have been duly registered under the Act pursuant to the initial
registration statement and, if applicable, the additional registration
statement or (B) such an additional registration statement is proposed
to be filed with the Commission pursuant to Rule 462(b) and will become
effective upon filing pursuant to such Rule and upon such filing the
Offered Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or, if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
CSFBL that it does not propose to amend such registration statement,
the date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (B) if the Company has advised CSFBL that it proposes to file an
amendment or post-effective amendment to such registration statement,
the date and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may be, is
declared effective by the Commission. If an additional registration
statement has not been filed prior to the execution
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and delivery of this Agreement but the Company has advised CSFBL that
it proposes to file one, "Effective Time" with respect to such
additional registration statement means the date and time as of which
such registration statement is filed and becomes effective pursuant to
Rule 462(b). "Effective Date" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including (a) all information
contained in the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the General
Instructions of the Form on which it is filed, (b) all information (if
any) deemed to be a part of the initial registration statement as of
its Effective Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act and (c) all other material incorporated by reference therein, is
hereinafter referred to as the "Initial Registration Statement." The
additional registration statement, as amended at its Effective Time,
including (a) the contents of the initial registration statement
incorporated by reference therein, (b) all information (if any) deemed
to be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b) and (c) all other material
incorporated by reference therein, is hereinafter referred to as the
"Additional Registration Statement". The Initial Registration Statement
and the Additional Registration Statement are hereinafter referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of U.S. prospectus, together with
the form of international prospectus, relating to the International
Securities, each of which shall be deemed to include all material
incorporated by reference therein and as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Act or (if no such filing is required) as included
in a Registration Statement, are hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (A) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
(the "Rules and Regulations") and did not include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading, (B) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed, or will
conform, in all material respects to the requirements of the Act and
the Rules and Regulations and did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit,
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (C) on the date of
this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the
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Prospectus is included, each Registration Statement and the Prospectus
will conform, in all material respects to the requirements of the Act
and the Rules and Regulations, and none of such documents includes, or
will include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, none of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written information
furnished to the Company by any Manager through CSFBL specifically for
use therein, it being understood and agreed that the only such
information is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have,
individually or in the aggregate, a material adverse effect on the
condition (financial or other), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated and
is a validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation, with appropriate power and
authority to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have, individually or in the aggregate,
a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and, except as
disclosed in the Prospectus, the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and, except as disclosed in the
Prospectus, the stockholders of the Company have no preemptive rights
with respect to the Securities.
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(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Manager or U.S. Underwriter for a brokerage commission, finder's fee or
other like payment with respect to the sale of the Offered Securities.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required to be
obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement or the Underwriting
Agreement in connection with the sale of the Offered Securities, except
such as have been obtained and made under the Act and the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act") and such as may be required under state securities laws.
(ix) The execution, delivery and performance of this Agreement and
the Underwriting Agreement, and the consummation of the transactions
herein and therein contemplated will not result in a breach or
violation of (A) any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any
of their properties, (B) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or (C) the charter or
by-laws of the Company or any such subsidiary, except, in the cases of
(A) and (B), where such breach, violation or default, individually or
in the aggregate, would not have a Material Adverse Effect.
(x) Each of this Agreement and the Underwriting Agreement has been
duly authorized, validly executed and delivered by the Company.
(xi) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would, individually or in
the aggregate, have a Material Adverse Effect.
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(xii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could be expected to
have a Material Adverse Effect.
(xiii) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
could be expected to have a Material Adverse Effect.
(xiv) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights that, if determined adversely to
the Company or any of its subsidiaries, individually or in the
aggregate, could be expected to have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim, individually or in the aggregate,
could be expected to have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a
claim.
(xvi) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, could be expected to have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement or the
Underwriting Agreement, or which are otherwise material in the context
of the sale of the Offered Securities; and, to the Company's knowledge,
no such actions, suits or proceedings are threatened or contemplated.
(xvii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial
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statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; the schedules included in each Registration Statement present
fairly the information required to be stated therein; and the
assumptions used in preparing the pro forma financial statements
included in each Registration Statement and the Prospectus provide a
reasonable basis for presenting the significant effects directly
attributable to the transactions or events described therein, the
related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xviii) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries individually, or taken as a whole,
and, except as disclosed in or contemplated by the Prospectus, there
has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(xix) The Company is not and, after giving effect to the offering
and sale of the Offered Securities, will not be an "investment company"
as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, the several Managers that:
(i) Such Selling Stockholder is duly incorporated (if such Selling
Stockholder is a corporation) and validly existing and, to the extent
such concept exists in the relevant jurisdiction, in good standing
under the laws of the jurisdiction of its incorporation.
(ii) Each of this Agreement and the Underwriting Agreement has
been duly authorized, executed and, to the extent such concept exists
in the relevant jurisdiction, delivered by such Selling Stockholder.
(iii) The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations
under, this Agreement and the Underwriting Agreement, will not
contravene any provision of applicable law, or the organizational
documents of such Selling Stockholder (if such Selling Stockholder is a
corporation), or any agreement or other instrument binding upon such
Selling Stockholder or any of its assets or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over such Selling Stockholder or any of its assets, except where such
contravention would not have, individually or in the aggregate, a
Material Adverse Effect, and no consent, approval, authorization, or
order of, or qualification or filing with, any governmental agency or
body or any court is required to be obtained or made by such Selling
Stockholder for the performance by such Selling Stockholder of its
obligations under this
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Agreement or the Underwriting Agreement, except (A) such as have been
obtained or made, (B) such as may be required by the securities or Blue
Sky laws of the various states of the United States of America in
connection with the offer and sale of the Offered Securities in the
United States of America and (C) such as may be required by the
securities laws of any jurisdiction outside the United States of
America.
(iv) Such Selling Stockholder has, and on each Closing Date
hereinafter mentioned will have, valid unencumbered title to the
Offered Securities to be sold by such Selling Stockholder on such date
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Underwriting
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be sold by such Selling Stockholder.
(v) Upon delivery of the Offered Securities to be sold by such
Selling Stockholder pursuant to this Agreement and the Underwriting
Agreement and payment therefor as contemplated by this Agreement and
the Underwriting Agreement, marketable title to the Offered Securities
will pass to the Managers free and clear of any security interests,
claims, liens, equities and other encumbrances, other than security
interests, liens, equities or other encumbrances arising solely from
the actions of the Underwriters.
(vi) There are no material agreements or arrangements relating to
the Company or its subsidiaries to which such Selling Stockholder, or
to the best of such Selling Stockholder's knowledge, to which any
direct or indirect stockholder of such Selling Stockholder is a party,
which are required to be described in the Registration Statements or
the Prospectus or to be filed as exhibits thereto that are not so
described or filed.
(vii) (a) Each Registration Statement, when such Registration
Statement became effective, did not contain and each such Registration
Statement, 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, (b) each Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules
and regulations of the Commission thereunder and (c) 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 foregoing representations and warranties apply only to the
extent that any statements or omissions in each Registration Statement
or the Prospectus are based upon information relating to such Selling
Stockholder and any direct or indirect stockholder of such Selling
Stockholder furnished to the Company in writing by such Selling
Stockholder expressly for use therein.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not
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jointly, to sell to the Managers, and each Manager agrees, severally and not
jointly, to purchase from each Selling Stockholder, at a purchase price of $[ -
] per share, that number of International Firm Securities (rounded up or down,
as determined by CSFBC in its discretion, in order to avoid fractions) obtained
by multiplying the number of International Firm Securities set forth opposite
the name of such Selling Stockholder in Schedule B hereto by a fraction the
numerator of which is the number of International Firm Securities set forth
opposite the name of such Manager in Schedule A hereto and the denominator of
which is the total number of International Firm Securities.
Each of the Selling Stockholders will deliver the International Firm
Securities to CSFBL for the accounts of the Managers, against payment of the
purchase price in U.S. dollars in immediately available funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBL
drawn to the order of each of the Selling Shareholders at the office of Cravath,
Swaine & ▇▇▇▇▇ ("Underwriters' Counsel"), at 10:00 a.m., New York time, on [ -
], or at such other time not later than seven full business days thereafter as
CSFBL and the Selling Stockholders determine, such time being herein referred to
as the "First Closing Date". For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the First Closing Date
(if later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the U.S. Offering and the International Offering.
The certificates for the International Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBL requests and will be made available for checking and packaging at the
above office of Underwriters' Counsel at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Managers may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
International Firm Securities. Each of the Selling Stockholders agree, severally
and not jointly, to sell to the Managers the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Stockholders in Schedule B hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities (subject to adjustment by CSFBL
to eliminate fractions). Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Manager and U.S. Underwriter in the
same proportion as the number of International Firm Securities set forth
opposite such Manager's name bears to the total number of International Firm
Securities and the number of U.S. Firm Securities set forth opposite such U.S.
Underwriter's name bears to the total number of U.S. Firm Securities (subject to
adjustment by CSFBL to eliminate fractions) and may be purchased by the Managers
only for the purpose of covering over-allotments made in connection with the
sale of the Firm Securities. No Optional Securities shall be sold or delivered
unless the International Firm Securities and the U.S. Firm Securities previously
have been, or simultaneously are, sold and delivered. The right to purchase the
Optional Securities or any portion thereof may be exercised from time to
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time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. Each of the Selling
Stockholders will deliver the Optional Securities being purchased on each
Optional Closing Date to CSFBL for the accounts of the several Managers, against
payment of the purchase price in immediately available funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBL
drawn to the order of each of the Selling Stockholders, at the above office of
Underwriters' Counsel. The certificates for the Optional Securities being
purchased on each Optional Closing Date will be in definitive form, in such
denominations and registered in such names as CSFBL requests upon reasonable
notice prior to such Optional Closing Date and will be made available for
checking and packaging at the above office of Underwriters' Counsel at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Managers. It is understood that the several Managers
propose to offer the International Securities for sale to the public as set
forth in the Prospectus.
In connection with the distribution of the International Securities,
the Managers, through a stabilizing manager, may over-allot or effect
transactions on any exchange, in any over-the-counter market or otherwise which
stabilize or maintain the market prices of the International Securities at
levels other than those which might otherwise prevail, but in such event and in
relation thereto, the Managers will act for themselves and not as agents of the
Company, and any loss resulting from over-allotment and stabilization will be
borne, and any profit arising therefrom will be beneficially retained, by the
Managers. Such stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company. The Company agrees with the
several Managers that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBL, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBL promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
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amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 p.m., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Manager or U.S.
Underwriter, or will make such filing at such later date as shall have
been consented to by CSFBL.
(b) The Company will advise CSFBL promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBL's prior consent (which will not be unreasonably
withheld); and the Company will also advise CSFBL promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a 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.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any U.S. Underwriter, Manager or dealer, any event occurs 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, not misleading, or if it
is necessary at any time to amend the Prospectus to comply with the
Act, the Company will promptly notify CSFBL of such event and will
promptly prepare and file with the Commission, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance. Neither CSFBL's
consent to, nor the Managers' delivery of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth
in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Managers copies of each
Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus and so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in
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connection with sales by any Manager or dealer, the International
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as CSFBL reasonably requests. The
Prospectus shall be so furnished on or prior to 3:00 p.m., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other such documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Managers all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBL designates and will continue such qualifications in effect so
long as required for the distribution; provided, that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it
is not now so subject.
(g) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company in
any jurisdiction outside the United States and Canada that would permit
a public offering of the Offered Securities, or possession or
distribution of the International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for that
purpose is required.
(h) During the period of 5 years hereafter, the Company will
furnish to CSFBL and, upon request, to each of the other Managers, as
soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will
furnish to CSFBL (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as CSFBL may
reasonably request.
(i) For a period of 90 days after the date of the initial
public offering of the Offered Securities (the "Lockup Period"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file (other than on a Form S-8)
with the Commission a registration statement under the Act relating to,
any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC,
except issuances of Securities pursuant to the conversion or exchange
of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options or issuances of Securities pursuant to the Company's dividend
reinvestment plan. Notwithstanding the provisions of this subsection
(h), the Company may file, but may not offer, sell or otherwise dispose
of any securities during the Lockup Period pursuant to, a
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registration statement in connection with (A) the exercise by Artal
Luxembourg S.A. ("Artal") of any remaining demand registration rights
under the Artal Stock Purchase Agreement (the "Artal Agreement"),
dated as of January 28, 1998, among Artal, Flowers Industries, Inc.
("Flowers") and the Company or (B) the exercise of any related
incidental registration rights by Claremont, Enterprises, Ltd
("Claremont") under the Claremont Stock Purchase Agreement (the
"Claremont Agreement"), dated as of January 28, 1998, among Claremont,
Artal, Flowers and the Company.
The Company agrees with the several Managers and the U.S. Underwriters
that the Company will pay all expenses incident to the performance of its
obligations and the obligations of the Selling Stockholders under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as CSFBL
designates and the printing of memoranda relating thereto, for any travel
expenses of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities, for any transfer taxes on the sale of the
Offered Securities to the Managers and for expenses incurred in printing and
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Managers.
Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date, a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Stockholder agrees, during the Lockup Period, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of Securities, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, without the prior written consent of CSFBC. Notwithstanding the
provisions of this paragraph, the Company may file, but may not offer, sell or
otherwise dispose of any securities during the Lockup Period pursuant to, a
registration statement in connection with (A) the exercise by Artal of any
remaining demand registration rights under the Artal Agreement or (B) the
exercise of any related incidental registration rights by Claremont under the
Claremont Agreement.
6. Conditions of the Obligations of the Managers. The obligations of
the several Managers to purchase and pay for the International Firm Securities
on the First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Managers shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on
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or prior to the date of this Agreement or, if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP in the form agreed upon and set forth in
Section 6(a) of the Underwriting Agreement.
(b) The Managers shall have received a letter, dated the date
of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP with respect to the financial statements and
other financial information of President International, Inc. included
in the Registration Statements, in a form substantially similar to that
referenced in paragraph (a) above.
(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 p.m., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBL. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 p.m., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Manager or U.S. Underwriter, or shall have occurred
at such later date as shall have been consented to by CSFBL. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Managers, shall be contemplated by the
Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (A) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of CSFBL,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the International Securities, whether in the
primary market or in respect of dealings in the secondary market, or
(B)(i) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or
results of operations of the Company or its subsidiaries which, in the
judgment of CSFBL, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities of the Company by any "nationally
recognized statistical
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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 its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the NYSE, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by the United States
Congress or any other substantial national or international calamity or
emergency if, in the judgment of CSFBL, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the International Securities.
(e) The Managers shall have received an opinion, dated such
Closing Date, of Winston & ▇▇▇▇▇▇, counsel for the Company, in the form
agreed upon and set forth in Annex I to the Underwriting Agreement.
(f) The Managers shall have received the opinion, dated such
Closing Date, of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for
Artal, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for Artal, Battle
▇▇▇▇▇▇, U.S. counsel for Claremont, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇,
Bermuda counsel for Claremont, in the form agreed upon and set forth
in Annexes II, III, IV and V, respectively, to the Underwriting
Agreement.
(g) The Managers shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Managers, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Managers may require,
and the Selling Stockholders 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.
(h) The Managers shall have received a certificate, dated such
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 after reasonable investigation, shall
state that: the representations and warranties of the Company in this
Agreement and the Underwriting Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Manager or U.S. Underwriter; and,
subsequent to the dates of the most recent financial statements in the
Prospectus, there has
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been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of 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.
(i) The Managers shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes of
this subsection.
(j) The Managers shall have received a letter, dated such
Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes of
this subsection.
(k) Flowers shall have furnished to the U.S. Representatives a
letter substantially in the form of Exhibit A hereto and addressed to
the U.S. Representatives relating to sales of shares of Securities or
any securities convertible into or exercisable or exchangeable for such
Securities, and each such letter shall be in full force and effect on
the Closing Date.
(l) Each executive officer and director of the Company shall
have furnished to the U.S. Representatives a letter substantially in
the form of Exhibit B hereto and addressed to the U.S. Representatives
relating to sales of shares of Securities or any securities convertible
into or exercisable or exchangeable for such Securities, and each such
letter shall be in full force and effect on the Closing Date.
(m) Each Selling Stockholder shall deliver to the U.S.
Representatives a properly completed and executed United States
Treasury Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(n) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the Optional Securities, as the
case may be, pursuant to the Underwriting Agreement.
Each of the Selling Stockholders and the Company will furnish the Managers with
such conformed copies of such opinions, certificates, letters and documents as
the Managers reasonably request. CSFBL may in its sole discretion waive on
behalf of the Managers compliance with any conditions to the obligations of the
Managers hereunder, whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Manager and each Selling Stockholder against any losses,
claims, damages or liabilities, joint or several, to which such Manager or
Selling Stockholder, as the case may be, may become subject, under the Act or
otherwise,
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insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Manager and
each Selling Stockholder for any legal or other expenses reasonably incurred by
such Manager or Selling Stockholder, as the case may be, in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company (i) by any Manager through CSFBL specifically for use therein, it being
understood and agreed that the only information furnished by any Manager
consists of the information described as such in subsection (c) below or (ii) by
any Selling Stockholder specifically for use therein.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Manager against any losses, claims, damages or
liabilities, joint or several, to which such Manager may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information about such Selling Stockholder (or any
direct or indirect stockholders of such Selling Stockholder) furnished to the
Company by such Selling Stockholder specifically for use therein, and will
reimburse each Manager for any legal or other expenses reasonably incurred by
such Manager in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that such Selling Stockholder will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by a Manager through CSFBL specifically for
use therein, it being understood and agreed that the only such information
furnished by any Manager consists of the information described as such in
subsection (c) below.
(c) Each Manager will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary
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prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Manager
through CSFBL specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling Stockholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Manager consists of the
following information in the Prospectus furnished on behalf of each Manager: the
concession and reallowance figures appearing in the fifth paragraph under the
caption "Subscription and Sale" and the over-allotments and stabilizing language
appearing in the thirteenth paragraph under the caption "Subscription and Sale".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a), (b) or (c) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 any claims
that are the subject matter of such action.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Managers on the
other 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
Selling Stockholders on the one hand and the Managers on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or
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liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Managers on the other shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Selling Stockholders bear to the total underwriting discounts and
commissions received by the Managers. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Managers and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Manager shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Manager 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
Managers' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company and each Selling Stockholder under
this Section shall be in addition to any liability which the Company and such
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Manager within the meaning
of the Act; and the obligations of the Managers under this Section shall be in
addition to any liability which the respective Managers may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed a Registration Statement
and to each person, if any, who controls the Company within the meaning of the
Act.
The maximum liability of each Selling Stockholder to indemnify or
contribute payments pursuant to this Section 7 shall not exceed the aggregate
proceeds (after deducting the Underwriters' discount) of the Offered Securities
(including the sale of shares on exercise of the over-allotment option, if any)
to such Selling Stockholder.
8. Default of Managers. If any Manager or Managers default in their
obligations to purchase Offered Securities hereunder on either the First Closing
Date or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Manager or Managers agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Managers are obligated to purchase on such Closing Date, CSFBL may make
arrangements satisfactory to the Selling Stockholders for the purchase of such
Offered Securities by other persons, including any of the Managers, but if no
such arrangements are made by such Closing Date the non-defaulting Managers
shall be obligated severally, in proportion to their respective commitments
hereunder, to
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purchase the Offered Securities that such defaulting Managers agreed but failed
to purchase on such Closing Date. If any Manager or Managers so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Managers are obligated to purchase on such Closing Date and
arrangements satisfactory to CSFBL and the Selling Stockholders for the purchase
of such Offered Securities by other persons are not made within 36 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Manager, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the International Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Manager" includes any person substituted for a Manager under this Section.
Nothing herein will relieve a defaulting Manager from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several Managers
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Manager, any Selling Stockholder, the Company or any
of their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Managers is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, the Selling
Stockholders and the Managers pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Managers is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
Section 6(d)(A) or clause (iii), (iv), or (v) of Section 6(d)(B), the Company
will reimburse the Managers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Managers, will be mailed, delivered or telexed and confirmed to
CSFBL at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ England, Attention: Company Secretary,
or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇'▇▇▇▇▇, or, if sent to Artal Luxembourg S.A., will be mailed, delivered or
telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Attention: Managing Director, or, if sent to Claremont,
Enterprises, Ltd, will be mailed, delivered or telegraphed and confirmed to it
at c/o G.F. Industries, Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; provided, however, that any notice to a Manager
pursuant to Section 7 will be mailed, delivered or telexed and confirmed to
such Manager.
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21
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives,
heirs and successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation of Managers. CSFBL will act for the several Managers
in connection with the transactions contemplated by this Agreement, and any
action under this Agreement taken by CSFBL will be binding upon all the
Managers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Company and the Selling Stockholders hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Managers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof,
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22
whereupon it will become a binding agreement between and among the Selling
Stockholders, the Company and the several Managers in accordance with its terms.
Very truly yours,
KEEBLER FOODS COMPANY,
by
------------------------------
Name:
Title:
ARTAL LUXEMBOURG S.A.,
by
------------------------------
Name:
Title:
CLAREMONT, ENTERPRISES, LTD
by
------------------------------
Name:
Title:
23
23
The foregoing Subscription Agreement is
hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
[ - ]
c/o CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Each by its duly authorized attorney-in-fact
By CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
by
--------------------------------------------
Name:
Title:
24
24
SCHEDULE A
NUMBER OF
INTERNATIONAL FIRM
SECURITIES TO BE
MANAGER PURCHASED
------- ------------------
Credit Suisse First Boston (Europe) Limited
----------
Total
==========
25
25
SCHEDULE B
NUMBER OF
INTERNATIONAL FIRM NUMBER OF OPTIONAL
SELLING STOCKHOLDER SECURITIES TO BE SOLD SECURITIES TO BE SOLD
------------------- --------------------- ---------------------
Artal Luxembourg S.A.
Claremont, Enterprises, Ltd
------------- -------------
Total......................... ============= =============