EXHIBIT 1.1
EXECUTION VERSION
SWIFT & COMPANY
$268,000,000
10-1/8% Senior Notes due 2009
Purchase Agreement
New York, New York
September 13, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the Initial Purchasers
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Swift & Company, a corporation organized under the laws of the
State of Delaware (the "COMPANY"), proposes to issue and sell to the several
parties named in Schedule I hereto (the "INITIAL PURCHASERS"), for whom you (the
"REPRESENTATIVES") are acting as representatives, $268,000,000 principal amount
of its 10-1/8% Senior Notes due 2009 (the "NOTES" and, together with the
Guarantees (as defined below), the "SECURITIES"). The Securities are to be
issued under an indenture (the "INDENTURE"), to be dated as of September 19,
2002, between the Company, the Guarantors (as defined below) and The Bank of New
York Trust Company of Florida, N.A., as trustee (the "TRUSTEE"). The Securities
have the benefit of a registration rights agreement (the "REGISTRATION RIGHTS
AGREEMENT"), to be dated as of September 19, 2002, between the Company, the
Guarantors and the Initial Purchasers, pursuant to which the Company and the
Guarantors have agreed to file with the Securities and Exchange Commission (the
"COMMISSION") under the circumstances set forth therein a registration statement
under the Securities Act of 1933, as amended, relating to a separate series of
the Company's 10-1/8% Senior Notes due 2009 (the "EXCHANGE NOTES") to be offered
in exchange for the Notes. The Securities will be unconditionally guaranteed
(the "GUARANTEES") on a senior unsecured basis by S&C Holdco 3, Inc., the
Company's direct parent, and all of the Company's existing domestic
subsidiaries, each of whom is listed on the signature pages hereto
(collectively, the "GUARANTORS"). To the extent there are no additional parties
listed on Schedule I other than you, the term Representatives as used herein
shall mean you as the Initial Purchasers, and the terms Representatives and
Initial Purchasers shall mean either the singular or plural as the context
requires. The use of the neuter in this Agreement shall include the feminine and
masculine wherever appropriate. Certain terms used herein are defined in Section
17 hereof.
HMTF Rawhide, L.P., a Delaware limited partnership formed by
the Company's equity sponsors, Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Incorporated and
Greeley Investments, LLC ("RAWHIDE"), ConAgra Foods, Inc., a Delaware
corporation ("CONAGRA"), and Swift Foods
Company, a Delaware corporation and our indirect parent corporation ("SWIFT
FOODS"), have entered into an agreement (the "ACQUISITION AGREEMENT"), dated as
of May 20, 2002, as amended to date, pursuant to which Swift Foods will acquire
and contribute to the Company (the "ACQUISITION") the United States beef, pork
and lamb processing businesses and the Australian beef business of ConAgra (the
"ACQUIRED BUSINESS"). In connection with the Acquisition and the offering of the
Securities, the Company and the Guarantors will enter into new senior secured
credit facilities in the amount of up to $550.0 million pursuant to a credit
agreement among the Company, the Guarantors, certain other subsidiaries of the
Company, Citicorp USA, Inc., as administrative agent and the other lenders
thereto (the "SENIOR CREDIT FACILITIES"). In addition, the Company will issue
and sell to ConAgra $150.0 million aggregate principal amount of its 12 1/2%
Senior Subordinated Notes due January 1, 2010 which will be guaranteed on a
senior subordinated, unsecured basis by the Guarantors (the "SENIOR SUBORDINATED
NOTES"). As described in the Final Memorandum (as defined below), the net
proceeds from the offering of the Securities, the issuance and sale of the
Senior Subordinated Notes to ConAgra and borrowings under the Senior Credit
Facilities will be used to fund the Acquisition and to pay transaction fees and
expenses incurred in connection therewith. The time of the consummation of the
acquisition shall be on the Closing Date (as defined in Section 3). All
references herein to the Company, the Guarantors and the other subsidiaries of
the Company include such entities as they will be constituted immediately
following the consummation of the Acquisition.
The sale of the Securities to the Initial Purchasers will be
made without registration of the Securities under the Act in reliance upon
exemptions from the registration requirements of the Act.
In connection with the sale of the Securities, the Company has
prepared a preliminary offering memorandum, dated September 3, 2002 (as amended
by the preliminary offering memorandum supplement dated September 6, 2002 and as
further amended or supplemented at the Execution Time, the "PRELIMINARY
MEMORANDUM"), and a final offering memorandum, dated September 13, 2002 (the
"FINAL MEMORANDUM"). Each of the Preliminary Memorandum and the Final Memorandum
sets forth certain information concerning the Company, the Acquired Business and
the Securities. The Company hereby confirms that it has authorized the use of
the Preliminary Memorandum and the Final Memorandum, and any amendment or
supplement thereto, in connection with the offer and sale of the Securities by
the Initial Purchasers.
1. Representations and Warranties. The Company and the
Guarantors, jointly and severally, represent and warrant to each Initial
Purchaser as set forth below in this Section 1.
(a) The Preliminary Memorandum, at the date thereof, did not
contain any 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. At the Execution Time and on the
Closing Date (as defined herein), the Final Memorandum did not, and will not
(and any amendment or supplement thereto, at the date thereof and on the Closing
Date will not), contain any 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; provided, however,
that the Company and the Guarantors make no representation or warranty as to the
information contained
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in or omitted from the Preliminary Memorandum or the Final Memorandum, or any
amendment or supplement thereto, in reliance upon and in conformity with
information furnished in writing to the Company and the Guarantors by or on
behalf of the Initial Purchasers through the Representatives specifically for
inclusion therein.
(b) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf has, directly or
indirectly, made offers or sales of any security, or solicited offers to buy any
security, under circumstances that would require the registration of the
Securities under the Act.
(c) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf has engaged in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United States.
(d) The Securities satisfy the eligibility requirements of
Rule 144A(d)(3) under the Act.
(e) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf has engaged in any
directed selling efforts with respect to the Securities, and each of them has
complied with the offering restrictions requirement of Regulation S. Terms used
in this paragraph but not otherwise defined in this Agreement have the meanings
given to them by Regulation S.
(f) The Company has been advised by the NASD's PORTAL Market
that the Securities have been designated PORTAL-eligible securities in
accordance with the rules and regulations of the NASD.
(g) Neither the Company nor any of the Guarantors is, and
after giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final Memorandum will
be, an "investment company" within the meaning of the Investment Company Act.
(h) Except for the fee to be paid to ConAgra (representing
2.5% of the aggregate principal amount of the Senior Subordinated Notes) in
connection with its purchase of the Senior Subordinated Notes, neither the
Company nor any of the Guarantors has paid or agreed to pay to any person any
compensation for soliciting another to purchase any securities of the Company
(except as contemplated by this Agreement).
(i) Neither the Company nor any Guarantor has taken, directly
or indirectly, any action designed to cause or which has constituted or which
might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(j) The information provided by the Company and the Guarantors
pursuant to Section 5(h) hereof will not, at the date thereof, contain any
untrue statement of a
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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.
(k) Each of S&C Holdco 3, Inc., the Company and its
subsidiaries (1) has been duly incorporated and is validly existing as a
corporation or limited liability company in good standing under the laws of the
jurisdiction in which it is chartered or organized with full corporate or
limited liability company power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in the
Final Memorandum, and (2) is duly qualified to do business as a foreign
corporation or limited liability company and is in good standing under the laws
of each jurisdiction which requires such qualification, except where the failure
to be so qualified or in good standing would not have a Material Adverse Effect.
(l) All the outstanding shares of capital stock of each
subsidiary of the Company have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as otherwise set forth in the
Final Memorandum, upon the closing of the Acquisition, all outstanding shares of
capital stock of each such subsidiary (other than Swift Integrated Genetics,
LLC, as to which the Company owns 50% of the outstanding equity interests) will
be owned by the Company either directly or through wholly owned subsidiaries
free and clear of any perfected security interest or any other security
interests, claims, liens or encumbrances.
(m) The Company's authorized equity capitalization is as set
forth in the Final Memorandum.
(n) The statements in the Final Memorandum under the headings
"Risk Factors--We are subject to extensive governmental regulation and our
noncompliance with or changes in these regulations could adversely affect our
business, financial condition, results of operations and cash flows," "Risk
Factors--Compliance with environmental regulations may result in significant
costs and failure to comply with environmental regulations may result in civil
as well as criminal penalties, liability for damages and negative publicity,"
"Business--Regulation and Environmental Matters," "Business--Legal Proceedings,"
"Certain Relationships and Related Party Transactions," "Description of Other
Indebtedness," "Description of Notes," "Exchange Offer; Registration Rights" and
"United States Federal Income Tax Considerations," fairly summarize the matters
therein described.
(o) This Agreement has been duly authorized, executed and
delivered by the Company and each Guarantor.
(p) The Indenture has been duly authorized and, assuming due
authorization, execution and delivery thereof by the Trustee, when executed and
delivered by the Company and each Guarantor, will constitute a legal, valid and
binding instrument enforceable against the Company and each Guarantor in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance, preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless of
whether enforcement is sought in a proceeding at law or in equity). On the
Closing Date, the Indenture will conform in all material
4
respects to the requirements of the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission applicable to an indenture qualified
thereunder.
(q) The Securities have been duly authorized, and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers, will have been duly
executed and delivered by the Company and each Guarantor and will constitute the
legal, valid and binding obligations of the Company and each Guarantor entitled
to the benefits of the Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, insolvency, moratorium, fraudulent conveyance, preference
or other laws affecting creditors' rights generally from time to time in effect
and to general principles of equity, regardless of whether enforcement is sought
in a proceeding at law or in equity).
(r) The Registration Rights Agreement has been duly authorized
and, when executed and delivered by the Company and each Guarantor (assuming due
execution by the Representatives), will constitute the legal, valid, binding and
enforceable instrument of the Company and each Guarantor (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, regardless of whether enforcement is sought in a proceeding at law or in
equity).
(s) The Exchange Notes and the guarantees of the Exchange
Notes (the "EXCHANGE GUARANTEES," and together with the Exchange Notes, the
"EXCHANGE SECURITIES") have been duly authorized, and, if and when executed and
authenticated in accordance with the provisions of the Indenture and delivered
in accordance with the registered exchange offer contemplated by the
Registration Rights Agreement, will have been duly executed and delivered by the
Company and each Guarantor and will constitute the legal, valid and binding
obligations of the Company and each Guarantor entitled to the benefits of the
Indenture (subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, preference or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity).
(t) The Company and each of the Guarantors has all requisite
corporate power and authority, has taken all requisite corporate action, and has
received and is in compliance with all governmental, judicial and other
authorizations, approvals and orders necessary to enter into and perform this
Agreement, the Indenture, the Registration Rights Agreement and the issuance and
sale of the Securities and the Exchange Securities. No consent, approval,
authorization, filing with or order of any court or governmental agency or body
is required in connection with the transactions contemplated herein or in the
Indenture or the Registration Rights Agreement, except such as will be obtained
under the Act and the Trust Indenture Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Initial Purchasers in the manner
contemplated herein and in the Final Memorandum and the Registration Rights
Agreement.
(u) The Company and each of the Guarantors have all requisite
corporate power and authority to enter into (A) the Senior Credit Facilities and
(B) any and all other
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agreements and instruments ancillary to or entered into in connection with the
transaction contemplated by the Senior Credit Facilities (collectively with the
Senior Credit Facilities, the "CREDIT DOCUMENTS").
(v) Each of the Senior Credit Facilities and the other Credit
Documents have been duly and validly authorized, executed and delivered by the
Company and each of the Guarantors and (assuming due authorization, execution
and delivery by the other parties thereto) constitutes a legal, valid and
binding agreement of each of the Company and each of the Guarantors, enforceable
against the Company and each of the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, preference and other laws
affecting creditors' rights generally from time to time in effect, and to
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity). All representations and warranties made by the
Company and each of the Guarantors in the Senior Credit Facilities and the other
Credit Documents are true and correct in all material respects as of the date
hereof.
(w) The indenture (the "SENIOR SUBORDINATED INDENTURE"), to be
dated as of September 19, 2002, between the Company, the Guarantors and The Bank
of New York Trust Company of Florida, N.A., as trustee (the "SENIOR SUBORDINATED
TRUSTEE"), has been duly authorized and, assuming due authorization, execution
and delivery thereof by the Senior Subordinated Trustee, when executed and
delivered by the Company and each Guarantor, will constitute a legal, valid and
binding instrument enforceable against the Company and each Guarantor in
accordance with its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent
conveyance, preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless of
whether enforcement is sought in a proceeding at law or in equity). On the
Closing Date, the Senior Subordinated Indenture will conform in all material
respects to the requirements of the Trust Indenture Act of 1939, as amended, and
the rules and regulations of the Commission applicable to an indenture qualified
thereunder.
(x) The Senior Subordinated Notes have been duly authorized,
and, when executed and authenticated in accordance with the provisions of the
Senior Subordinated Indenture and delivered to and paid for by ConAgra, will
have been duly executed and delivered by the Company and each Guarantor and will
constitute the legal, valid and binding obligations of the Company and each
Guarantor entitled to the benefits of the Senior Subordinated Indenture
(subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, preference or other laws
affecting creditors' rights generally from time to time in effect and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity).
(y) The registration rights agreement (the "SENIOR
SUBORDINATED REGISTRATION RIGHTS AGREEMENT"), to be dated as of September 19,
2002, between the Company, the Guarantors and ConAgra, pursuant to which the
Company and the Guarantors have agreed to file with the Commission under the
circumstances set forth therein a registration statement under the Securities
Act of 1933, as amended, relating to the registration of the Senior Subordinated
Notes, has been duly authorized and, when executed and delivered by the Company
and each Guarantor (assuming due execution by ConAgra), will constitute the
legal, valid, binding and
6
enforceable instrument of the Company and each Guarantor (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity, regardless of whether enforcement is sought in a proceeding at law or in
equity).
(z) Each of Swift Foods, S&C Holdco 2, Inc., S&C Holdco 3,
Inc., the Company and each of its subsidiaries, to the extent they are a party
thereto, and, to the Company's knowledge, ConAgra, have all requisite corporate
power and authority to enter into (A) the Acquisition Agreement and (B) any and
all other agreements and instruments ancillary to or entered into in connection
with the transaction contemplated by the Acquisition Agreement (collectively
with the Acquisition Agreement, the "ACQUISITION DOCUMENTS").
(aa) Each of the Acquisition Agreement and the other
Acquisition Documents has been duly and validly authorized, executed and
delivered by Swift Foods, S&C Holdco 2, Inc., S&C Holdco 3, Inc., the Company
and each of its subsidiaries, to the extent they are a party thereto, and
(assuming due authorization, execution and delivery by the other parties
thereto) constitutes a legal, valid and binding agreement of each of the Company
and each of the Guarantors, to the extent they are a party thereto, enforceable
against the Company and each of the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
insolvency, moratorium, fraudulent conveyance, preference and other laws
affecting creditors' rights generally from time to time in effect, and to
general principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity). All representations and warranties made by
Swift Foods, S&C Holdco 2, Inc., S&C Holdco 3, Inc., the Company and each of its
subsidiaries, to the extent they are a party thereto, and, to the Company's
knowledge, ConAgra, in the Acquisition Agreement and the other Acquisition
Documents are true and correct in all material respects as of the date hereof.
(bb) Neither the execution and delivery of this Agreement, the
Indenture, the Senior Subordinated Indenture, the Registration Rights Agreement,
the Senior Subordinated Registration Rights Agreement, the Senior Credit
Facilities, the other Credit Documents, the Acquisition Agreement, the other
Acquisition Documents, the issuance and sale of the Securities, the issuance and
sale of the Senior Subordinated Notes, nor the consummation of any other of the
transactions herein or therein contemplated, nor the fulfillment of the terms
hereof or thereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or asset of S&C
Holdco 3, Inc., the Company or any of its subsidiaries pursuant to, (i) the
certificate of incorporation or by-laws (or other organizational documents) of
the Company or any of its subsidiaries, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which S&C
Holdco 3, Inc., the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to S&C Holdco 3, Inc., the
Company or any of its subsidiaries of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over S&C Holdco 3, Inc., the Company or any of its subsidiaries or any of its or
their properties, except, in the case of clauses (ii) and (iii) for such
conflicts, breaches, violations or impositions that would not have a Material
Adverse Effect.
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(cc) The combined historical financial statements of the
ConAgra Red Meat Business included in the Final Memorandum present fairly in all
material respects the financial condition, results of operations and cash flows
of the ConAgra Red Meat Business as of the dates and for the periods indicated,
comply as to form in all material respects with the applicable accounting
requirements of the Act and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein); the summary financial data
(including without limitation the financial data relating to the Acquired
Business) set forth under the caption "Summary--Recent Developments" and
"Summary--Summary Historical and Unaudited Pro Forma Combined Financial and
Other Data" in the Final Memorandum fairly present, on the basis stated in the
Final Memorandum, the information included therein; and the selected financial
data (including without limitation the financial data relating to the Acquired
Business) set forth under the caption "Selected Historical Combined Financial
Data" in the Final Memorandum fairly present, on the basis stated in the Final
Memorandum, the information included therein. The pro forma financial statements
included in the Final Memorandum include assumptions that provide a reasonable
basis for presenting the significant effects directly attributable to the
transactions and events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma adjustments
reflect the proper application of those adjustments to the combined historical
financial statement amounts in the pro forma financial statements included in
the Final Memorandum; the pro forma financial statements included in the Final
Memorandum comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X under the Act; and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements.
(dd) The balance sheet of Swift & Company dated as of May 29,
2002 included in the Final Memorandum presents fairly in all material respects
the assets and liabilities and stockholder's equity as of the date thereof,
complies as to form in all material respects with the applicable accounting
requirements of the Act and has been prepared in conformity with generally
accepted accounting principles.
(ee) Except as described in the Final Memorandum, no action,
suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving S&C Holdco 3, Inc., the Company or any of its
subsidiaries or its or their officers or property is pending or, to the best
knowledge of the Company, threatened that (i) would reasonably be expected to
have a material adverse effect on the performance of this Agreement, the
Indenture, the Senior Subordinated Indenture, the Registration Rights Agreement
or the Senior Subordinated Registration Rights Agreement, or the consummation of
any of the transactions contemplated hereby or thereby; or (ii) would reasonably
be expected to have a Material Adverse Effect.
(ff) Each of S&C Holdco 3, Inc., the Company and each of its
subsidiaries owns or leases all such properties as are necessary to the conduct
of its operations as presently conducted, except where the failure to own or
lease such properties would not have a Material Adverse Effect.
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(gg) Neither S&C Holdco 3, Inc., the Company nor any of its
subsidiaries is in violation or default of (i) any provision of its certificate
of incorporation or by-laws (or other organizational documents); (ii) the terms
of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument to
which it is a party or bound or to which its property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or other
authority having jurisdiction over S&C Holdco 3, Inc., the Company or such
subsidiary or any of its properties, as applicable, except, in the case of
clauses (ii) and (iii) for such conflicts, breaches, violations or impositions
that would not have a Material Adverse Effect.
(hh) Deloitte & Touche LLP, who have audited certain financial
statements of Swift & Company and the ConAgra Red Meat Business and delivered
their reports with respect to the balance sheet of Swift & Company as of May 29,
2002 and the audited combined financial statements of the ConAgra Red Meat
Business, each included in the Final Memorandum, are independent certified
public accountants with respect to the Company and the ConAgra Red Meat Business
(i) under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings and (ii) within the meaning of the Act and the
applicable published rules and regulations thereunder.
(ii) There are no stamp or other issuance or transfer taxes or
duties or other similar fees or charges required to be paid in connection with
the execution, delivery and performance of this Agreement or the issuance or
sale by the Company and the Guarantors of the Securities.
(jj) The Company and each of the Guarantors has filed all
foreign, federal, state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which the failure so to
file would not have a Material Adverse Effect), and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against it, to
the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or
as would not have a Material Adverse Effect.
(kk) No labor problem or dispute with the employees of the
Company or any of its subsidiaries exists or, to the best of the Company's
knowledge, is threatened or imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or its
subsidiaries' principal suppliers, contractors or customers, that could have a
Material Adverse Effect.
(ll) (1) The Company and each of its subsidiaries are insured
by insurers of recognized financial responsibility against such losses and risks
and in such amounts as are required by applicable law and are customary in the
businesses in which they are engaged; all policies of insurance and fidelity or
surety bonds insuring the Company or any of its subsidiaries or their respective
businesses, assets, employees, officers and directors are in full force and
effect; (2) the Company and its subsidiaries are in compliance with the terms of
such policies and instruments in all material respects; (3) there are no claims
by the Company or any of its subsidiaries under any such policy or instrument as
to which any insurance company is denying
9
liability or defending under a reservation of rights clause; and (4) neither the
Company nor any such subsidiary has been refused any insurance coverage sought
or applied for, except in the case of clauses (1) through (3) above for such
matters that would not have a Material Adverse Effect; and neither the Company
nor any such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.
(mm) No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making
any other distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or any
other subsidiary of the Company.
(nn) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or modification of
any such certificate, authorization or permit which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(oo) The Company and each of its subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
(pp) Except as disclosed in the Final Memorandum, the Company
and its subsidiaries are (i) in compliance in all material respects with any and
all applicable foreign, federal, state and local laws and regulations relating
to the protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"),
(ii) have received and are in compliance with all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct their
respective businesses, and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants,
except where such non-compliance with Environmental Laws, failure to receive
required permits, licenses or other approvals, or liability would not,
individually or in the aggregate, have a Material Adverse Effect. Neither the
Company nor any of its subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(qq) Each of the Company and its subsidiaries has fulfilled
its obligations, if any, under the minimum funding standards of ▇▇▇▇▇▇▇ ▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and the regulations and
10
published interpretations thereunder with respect to each "plan" (as defined in
Section 3(3) of ERISA and such regulations and published interpretations) in
which employees of the Company and its subsidiaries are eligible to participate
and each such plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company and its subsidiaries have not incurred any unpaid
liability to the Pension Benefit Guaranty Corporation (other than for the
payment of premiums in the ordinary course) or to any such plan under Title IV
of ERISA, except for such liability as would not have a Material Adverse Effect.
(rr) Each of the relationships and transactions specified in
Item 404 of Regulation S-K that would have been required to be described in a
prospectus if this offering had been registered under the Act have been so
described in the Final Memorandum (exclusive of any amendment or supplement
thereto).
(ss) The Company and its subsidiaries own, possess, license or
have other rights to use, all patents, patent applications, trade and service
marks, trade and service ▇▇▇▇ registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual property
(collectively, the "INTELLECTUAL PROPERTY") necessary for and material to the
conduct of the Company's business as described in the Final Memorandum, except
where the failure to own, possess, license or have other rights to use such
Intellectual Property would not reasonably be expected to have a Material
Adverse Effect. Except as set forth in the Final Memorandum, (a) there are no
rights of third parties to any such Intellectual Property (other than the rights
of licensors in Intellectual Property that is licensed to the Company or its
Subsidiaries); (b) to the Company's knowledge, there is no material infringement
by third parties of any such Intellectual Property; (c) there is no pending or,
to the Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any such Intellectual Property;
(d) there is no pending or, to the Company's knowledge, threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such
Intellectual Property; and (e) there is no pending or threatened action, suit,
proceeding or claim by others that the Company infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary rights of
others.
(tt) The subsidiaries listed on Exhibit B attached hereto are
the only significant subsidiaries of the Company as defined by Rule 1-02 of
Regulation S-X under the Act.
Any certificate signed by any officer of the Company or any of
the Guarantors and delivered to the Representatives or counsel for the Initial
Purchasers in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company or such Guarantor, as to matters
covered thereby, to each Initial Purchaser.
2. Purchase and Sale.
Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company and the Guarantors
agree to sell to each Initial Purchaser, and each Initial Purchaser agrees,
severally and not jointly, to purchase from the Company and the Guarantors, at a
purchase price of 93.480% of the principal amount thereof,
11
plus accrued interest, if any, from September 19, 2002, to the Closing Date,
less their pro rata share of total commissions of $6,250,000, the principal
amount of Securities set forth opposite such Initial Purchaser's name in
Schedule I hereto.
3. Delivery and Payment. Delivery of and payment for the
Securities shall be made at 10:00 A.M., New York City time, on September 19,
2002, or at such time on such later date (not later than September 26, 2002) as
the Representatives shall designate pursuant to Section 9 hereof, which date and
time may be postponed by agreement between the Representatives and the Company
(such date and time of delivery and payment for the Securities being herein
called the "CLOSING DATE"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Initial Purchasers
against payment by the several Initial Purchasers through the Representatives of
the purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company. The
Securities shall be delivered in such names, forms and amounts as the
Representatives shall specify and delivery shall be made through the facilities
of The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Representations and Warranties by Initial Purchasers. Each
Initial Purchaser, severally and not jointly, represents and warrants to and
agrees with the Company and the Guarantors that:
(a) Neither it nor any person acting on its behalf has offered
or sold, or will offer or sell, any Securities except (i) to those it reasonably
believes to be qualified institutional buyers (as defined in Rule 144A under the
Act) and that, in connection with each such sale, it has taken or will take
reasonable steps to ensure that the purchaser of such Securities is aware that
such sale is being made in reliance on Rule 144A or (ii) in accordance with the
restrictions set forth in Exhibit A hereto.
(b) Neither it nor any person acting on its behalf has made or
will make offers or sales of the Securities in the United States by means of any
form of general solicitation or general advertising (within the meaning of
Regulation D) in the United States.
(c) It is an "accredited investor" within the meaning of
Regulation D under the Act.
5. Agreements. The Company and each Guarantor, as applicable,
agrees with each Initial Purchaser that:
(a) The Company will furnish to each Initial Purchaser and to
counsel for the Initial Purchasers, without charge, during the period referred
to in paragraph (c) below, as many copies of the Final Memorandum and any
amendments and supplements thereto as they may reasonably request.
(b) The Company will not amend or supplement the Final
Memorandum without the prior written consent of the Representatives, which
consent shall not be unreasonably withheld.
12
(c) If at any time prior to the completion of the sale of the
Securities by the Initial Purchasers (as determined by the Representatives), any
event occurs as a result of which the Final Memorandum, as then amended or
supplemented, would include any 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 should
be necessary to amend or supplement the Final Memorandum to comply with
applicable law, the Company promptly (i) will notify the Representatives of any
such event; (ii) subject to the requirements of paragraph (b) of this Section 5,
will prepare an amendment or supplement that will correct such statement or
omission or effect such compliance; and (iii) will supply any supplemented or
amended Final Memorandum to the several Initial Purchasers and counsel for the
Initial Purchasers without charge in such quantities as they may reasonably
request.
(d) The Company will arrange, if necessary, for the
qualification of the Securities for sale by the Initial Purchasers under the
laws of such jurisdictions as the Initial Purchasers may designate and will
maintain such qualifications in effect so long as required for the sale of the
Securities; 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 that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject. The Company will promptly advise the
Representatives of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
(e) The Company and the Guarantors will not, and will not
permit any of its or their Affiliates to, resell any Securities that have been
acquired by any of them.
(f) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf will, directly or
indirectly, make offers or sales of any security, or solicit offers to buy any
security, under circumstances that would require the registration of the
Securities under the Act.
(g) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf will engage in any form
of general solicitation or general advertising (within the meaning of Regulation
D) in connection with any offer or sale of the Securities in the United States.
(h) So long as any of the Securities are "restricted
securities" within the meaning of Rule 144(a)(3) under the Act, the Company and
the Guarantors will, during any period in which it is not subject to Section 13
or 15(d) of the Exchange Act or it is not exempt from such reporting
requirements pursuant to and in compliance with Rule 12g3-2(b) under the
Exchange Act, provide to each holder of such restricted securities and to each
prospective purchaser (as designated by such holder) of such restricted
securities, upon the request of such holder or prospective purchaser, any
information required to be provided by Rule 144A(d)(4) under the Act. This
covenant is intended to be for the benefit of the holders, and the prospective
purchasers designated by such holders, from time to time of such restricted
securities.
13
(i) None of the Company, the Guarantors, any of its or their
Affiliates or any person acting on its or their behalf will engage in any
directed selling efforts with respect to the Securities, and each of them will
comply with the offering restrictions requirement of Regulation S. Terms used in
this paragraph and not otherwise defined in this Agreement have the meanings
given to them by Regulation S.
(j) The Company will cooperate with the Representatives and
use its best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(k) Neither the Company nor any Guarantor will take, directly
or indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or otherwise,
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(l) The Company agrees to pay the costs and expenses (other
than, except as otherwise expressly provided below, with respect to counsel for
the Initial Purchasers) relating to the following matters: (i) the preparation
of the Indenture and the Registration Rights Agreement, the issuance of the
Securities and the fees of the Trustee; (ii) the preparation, printing or
reproduction of the Preliminary Memorandum and Final Memorandum and each
amendment or supplement to either of them; (iii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Preliminary Memorandum and Final
Memorandum, and all amendments or supplements to either of them, as may, in each
case, be reasonably requested for use in connection with the offering and sale
of the Securities; (iv) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities; (v)
the printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (vi) any
registration or qualification of the Securities for offer and sale under the
securities or blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Initial Purchasers relating to
such registration and qualification); (vii) admitting the Securities for trading
in the PORTAL Market; (viii) the transportation and other expenses incurred by
or on behalf of Company representatives in connection with presentations to
prospective purchasers of the Securities; (ix) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (x) all other costs and expenses incident
to the performance by the Company of its obligations hereunder.
6. Conditions to the Obligations of the Initial Purchasers.
The obligations of the Initial Purchasers to purchase the Securities shall be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors contained herein at the Execution Time and the
Closing Date, to the accuracy of the statements of the Company and the
Guarantors made in any certificates pursuant to the provisions hereof, to the
performance by the Company and the Guarantors of its or their obligations
hereunder and to the following additional conditions:
14
(a) The Company shall have requested and caused ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P., counsel for the Company, to furnish to the Representatives its
opinion (containing customary assumptions, qualifications, limitations and
exceptions reasonably acceptable to the Initial Purchasers), dated the Closing
Date and addressed to the Representatives, to the effect that:
(i) each of S&C Holdco 3, Inc., the Company and each
of the Company's subsidiaries that are Guarantors and that is a company
newly formed in connection with the Acquisition has been duly
incorporated;
(ii) each of S&C Holdco 3, Inc., the Company and each
of the Company's domestic subsidiaries is validly existing as a
corporation or limited liability company in good standing under the
laws of the jurisdiction in which it is chartered or organized, with
full corporate or limited liability company power and authority to own
or lease, as the case may be, and to operate its properties and conduct
its business as described in the Final Memorandum, and is duly
qualified to do business as a foreign corporation or foreign limited
liability company and is in good standing under the laws of each
domestic jurisdiction identified on Exhibit C, except where the failure
to be so qualified or in good standing would not have a Material
Adverse Effect;
(iii) all the outstanding shares of capital stock of
the Company and each of its domestic subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable;
except as otherwise set forth in the Final Memorandum, all outstanding
shares of capital stock of the Company's subsidiaries (other than Swift
Integrated Genetics, LLC, as to which the Company only owns 50% of the
outstanding equity interests) are owned by the Company either directly
or through wholly owned subsidiaries and free of any adverse claim (as
such term is defined in Section 8-102 of the Uniform Commercial Code as
in effect in the State of New York (the "UNIFORM COMMERCIAL CODE"); and
all outstanding shares of capital stock of the Company are owned by S&C
Holdco 3, Inc. directly and free of any adverse claim (as such term is
defined in Section 8-102 of the Uniform Commercial Code);
(iv) the Company's authorized equity capitalization
is as set forth in the Final Memorandum.
(v) the Indenture has been duly authorized, executed
and delivered, by the Company and each Guarantor, and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a legal, valid and binding instrument enforceable against
the Company and each of the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
(vi) the Securities have been duly and validly
authorized by the Company and each Guarantor, and, when executed and
authenticated in accordance with
15
the provisions of the Indenture and delivered to and paid for by the
Initial Purchasers under this Agreement, will constitute legal, valid,
binding and enforceable obligations of the Company and the Guarantors
entitled to the benefits of the Indenture (subject, as to the
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium, fraudulent conveyance, preference or other laws
affecting creditors' rights generally from time to time in effect and
to general principles of equity, regardless of whether enforcement is
sought in a proceeding at law or in equity);
(vii) the Registration Rights Agreement has been duly
authorized, executed and delivered by the Company and each of the
Guarantors and, assuming due execution by the Initial Purchasers,
constitutes a legal, valid, and binding instrument enforceable against
the Company and the Guarantors in accordance with its terms (subject,
as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
(viii) the Senior Subordinated Indenture has been
duly authorized, executed and delivered, by the Company and each
Guarantor, and, assuming due authorization, execution and delivery by
the other parties thereto, constitutes a legal, valid and binding
instrument enforceable against the Company and each of the Guarantors
in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium, fraudulent conveyance, preference or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity, regardless of whether enforcement is sought in a
proceeding at law or in equity);
(ix) the Senior Subordinated Notes have been duly and
validly authorized by the Company and each Guarantor, and, when
executed and authenticated in accordance with the provisions of the
Senior Subordinated Indenture and delivered to and paid for by ConAgra,
will constitute legal, valid, binding and enforceable obligations of
the Company and the Guarantors entitled to the benefits of the Senior
Subordinated Indenture (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent conveyance, preference or other laws affecting creditors'
rights generally from time to time in effect and to general principles
of equity, regardless of whether enforcement is sought in a proceeding
at law or in equity);
(x) the Senior Subordinated Registration Rights
Agreement has been duly authorized, executed and delivered by the
Company and each of the Guarantors and, assuming due execution by
ConAgra, constitutes a legal, valid, and binding instrument enforceable
against the Company and the Guarantors in accordance with its terms
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium, fraudulent conveyance,
preference or other laws affecting creditors' rights generally from
time to time in effect and to general principles of equity, regardless
of whether enforcement is sought in a proceeding at law or in equity);
16
(xi) the statements in the Final Memorandum set forth
under the headings "Risk Factors--We are subject to extensive
governmental regulation and our noncompliance with or changes in these
regulations could adversely affect our business, financial condition,
results of operations and cash flows," "Risk Factors--Compliance with
environmental regulations may result in significant costs and failure
to comply with environmental regulations may result in civil as well as
criminal penalties, liability for damages and negative publicity,"
"Business--Regulation and Environmental Matters," "Business--Legal
Proceedings," "Description of Other Indebtedness," "Certain
Relationships and Related Party Transactions," "Description of Notes,"
"Exchange Offer; Registration Rights" and "United States Federal Income
Tax Considerations," insofar as such statements purport to constitute a
summary of the legal matters referred to therein or the terms of the
Securities, the Senior Subordinated Notes, the Indenture, the Senior
Subordinated Indenture, the Registration Rights Agreement and the
Senior Subordinated Registration Rights Agreement fairly present the
matters set forth therein;
(xii) other than as described in the Final
Memorandum, to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their officers, directors
or property of a character required to be disclosed in a registration
statement filed under the Act, except in each case for such proceedings
that, if the subject of an unfavorable decision, ruling or finding
would not singly or in the aggregate, have a Material Adverse Effect;
(xiii) such counsel has no reason to believe that at
the Execution Time and on the Closing Date the Final Memorandum
contained or contains any untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading (in each case, other than the financial
statements and other financial information contained therein, as to
which such counsel need express no opinion);
(xiv) this Agreement has been duly authorized,
executed and delivered by the Company;
(xv) the Company and each Guarantor has all requisite
corporate power and authority, has taken all requisite corporate
action, and has received and is in compliance with all governmental,
judicial and other authorizations, approvals and orders necessary to
enter into and perform this Agreement, the Indenture, the Senior
Subordinated Indenture, the Registration Rights Agreement, the Senior
Subordinated Registration Rights Agreement and the issuance and sale of
the Securities and the Senior Subordinated Notes, and no consent,
approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the
transactions contemplated herein or in the Indenture, the Senior
Subordinated Indenture, the Registration Rights Agreement and the
Senior Subordinated Registration Rights
17
Agreement, except such as will be obtained under the Act and the Trust
Indenture Act and such as may be required under the blue sky or
securities laws of any jurisdiction in connection with the purchase and
sale of the Securities by the Initial Purchasers in the manner
contemplated in this Agreement and the Final Memorandum and the
Registration Rights Agreement and such other approvals (specified in
such opinion) as have been obtained;
(xvi) neither the execution and delivery of the
Indenture, the Senior Subordinated Indenture, this Agreement, the
Registration Rights Agreement, the Senior Subordinated Registration
Rights Agreement, the issuance and sale of the Securities, the issuance
and sale of the Senior Subordinated Notes, nor the consummation of any
other of the transactions herein or therein contemplated, nor the
fulfillment of the terms hereof or thereof will conflict with, result
in a breach or violation of, or imposition of any lien, charge or
encumbrance upon any property or asset of S&C Holdco 3, Inc., the
Company or its domestic subsidiaries pursuant to, (i) the certificate
of incorporation or by-laws of the Company or its domestic subsidiaries
(or other organizational documents); (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or
instrument to which S&C Holdco 3, Inc., the Company or any of its
domestic subsidiaries is a party or bound or to which its respective
property is subject, of which they are aware; or (iii) any statute,
law, rule, regulation, judgment, order or decree applicable to S&C
Holdco 3, Inc., the Company or any of its domestic subsidiaries of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over S&C Holdco 3,
Inc., the Company, any of its domestic subsidiaries or any of their
respective properties, except, in the case of clauses (ii) and (iii)
for such conflicts, breaches, violations or impositions that would not
have a Material Adverse Effect;
(xvii) assuming the accuracy of the representations
and warranties and compliance with the agreements contained herein, no
registration of the Securities under the Act, and no qualification of
an indenture under the Trust Indenture Act is required for the offer
and sale by the Initial Purchasers of the Securities in the manner
contemplated by this Agreement; the Indenture is in appropriate form
for qualification under the Trust Indenture Act; and
(xviii) neither the Company nor any of the Guarantors
is and, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the Final
Memorandum, will be an "investment company" as defined in the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
State of Delaware, the State of New York or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion of other counsel of good standing whom they believe to be reliable, who
are satisfactory to counsel for the Initial Purchasers and upon whom the Initial
Purchasers can rely; and (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company, the Guarantors
and public officials. References to the Final Memorandum in this Section 6(a)
include any amendment or supplement thereto at the Closing Date.
18
(b) The Company shall have requested and caused ▇▇▇▇▇▇ &
▇▇▇▇▇▇ L.L.P., counsel for the Company, to furnish a letter to the
Representatives, authorizing the Representatives to rely on its opinion
delivered to the Company in connection with the entering into of the Senior
Credit Facilities.
(c) The Company shall have requested and caused Mallesons
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Australian counsel for the Company, to furnish a letter to the
Representatives, authorizing the Representatives to rely on its opinion
delivered to the Company in connection with the entering into of the Senior
Credit Facilities.
(d) The Representatives shall have received from Weil, Gotshal
& ▇▇▇▇▇▇ LLP, counsel for the Initial Purchasers, such opinion or opinions,
dated the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration Rights
Agreement, the Final Memorandum (as amended or supplemented at the Closing Date)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(e) The Company and each Guarantor shall have furnished to the
Representatives a certificate of the Company and each Guarantor, signed by the
Chairman of the Board or the President and the principal financial or accounting
officer of the Company and each Guarantor, dated the Closing Date, to the effect
that the signers of such certificate have carefully examined the Final
Memorandum, any amendment or supplement to the Final Memorandum and this
Agreement and that:
(i) the representations and warranties of the Company
and the Guarantors in each of this Agreement and the Senior Credit
Facilities (to the extent they are a party thereto) are true and
correct on and as of the Closing Date with the same effect as if made
on the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed
or satisfied hereunder at or prior to the Closing Date; and
(ii) since the date of the most recent financial
statements included in the Final Memorandum (exclusive of any amendment
or supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Final
Memorandum (exclusive of any amendment or supplement thereto).
(f) At the Execution Time, the Company shall have requested
and caused Deloitte & Touche LLP to furnish to the Representatives a letter,
dated as of the Execution Time, in form and substance satisfactory to the
Representatives, (1) confirming that they are independent certified public
accountants with respect to Swift & Company and the ConAgra Red
19
Meat Business under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings and (2) stating, as of the Execution Time (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Final Memorandum, as
of a date not more than five days prior to the Execution Time), the conclusions
and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to Representatives.
(g) With respect to the letter of Deloitte & Touche LLP
referred to in the preceding paragraph and delivered to the Representatives at
the Execution Time (the "INITIAL LETTER"), the Company shall have requested and
caused Deloitte & Touche LLP to furnish to the Representatives a letter, dated
as of the Closing Date, in form and substance satisfactory to the
Representatives and their counsel, (1) confirming that they are independent
certified public accountants with respect to Swift & Company and the ConAgra Red
Meat Business under Rule 101 of the AICPA's Code of Professional Conduct and its
interpretations and rulings, (2) stating, as of the Closing Date (or, with
respect to matters involving changes or developments since the respective dates
as of which specified financial information is given in the Final Memorandum, as
of a date not more than five days prior to the Closing Date), the conclusions
and findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to Representatives
and (3) confirming in all material respects the conclusions and findings set
forth in the initial letter.
(h) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Final Memorandum (exclusive of any
amendment or supplement thereto), there shall not have been (i) any change,
decrease or increase specified in the letter or letters referred to in
paragraphs (g) and (h) of this Section 6; or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in the Final
Memorandum (exclusive of any amendment or supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the sole good
faith judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to market the Securities as contemplated by the Final
Memorandum.
(i) Each of the Company and the Guarantors shall have entered
into the Registration Rights Agreement. The Initial Purchasers shall have
received counterparts, conformed as executed, thereof.
(j) Each of the Company and the Guarantors shall have entered
into the Senior Credit Facilities and any Credit Documents to which it is a
party thereto. The Initial Purchasers shall have received counterparts,
conformed as executed, thereof. There shall not exist at and as of the Closing
Date any conditions that would constitute a default (or an event that with
notice or the lapse of time, or both, would constitute a default) under the
Senior Credit Facilities.
(k) The Company will have issued and sold to ConAgra the
Senior Subordinated Notes and the Company and the Guarantors shall have entered
into the Senior
20
Subordinated Indenture and the Senior Subordinated Registration Rights
Agreement. The Initial Purchasers shall have received counterparts, conformed as
executed, thereof. There shall not exist at and as of the Closing Date any
conditions that would constitute a default (or an event that with notice or the
lapse of time, or both, would constitute a default) under the Senior
Subordinated Indenture.
(l) Each condition to the closing of the Acquisition
contemplated by the Acquisition Agreement shall have been satisfied or, with the
written consent of the Representatives, which consent shall not be unreasonably
withheld, waived. On the Closing Date, the acquisition of the Acquired Business
shall have been consummated on terms that conform in all material respects to
the description thereof in the Final Memorandum and the Representatives shall
have received evidence satisfactory to the Initial Representatives of the
consummation thereof.
(m) The Securities shall have been designated as
PORTAL-eligible securities in accordance with the rules and regulations of the
NASD, and the Securities shall be eligible for clearance and settlement through
The Depositary Trust Company.
(n) Prior to the Closing Date, the Company and the Guarantors
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Initial Purchasers, this Agreement and all obligations of the Initial Purchasers
hereunder may be cancelled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall
be delivered at the office of counsel for the Initial Purchasers, c/o Weil,
Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Reimbursement of Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth in Section 6 hereof is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with any provision hereof other than by
reason of a default by any of the Initial Purchasers, the Company will reimburse
the Initial Purchasers severally through ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney on demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless each Initial Purchaser, the directors,
officers, employees and agents
21
of each Initial Purchaser and each person who controls any Initial Purchaser
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law 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 a
material fact contained in the Preliminary Memorandum, the Final Memorandum (or
in any supplement or amendment thereto) or any information provided by the
Company or any Guarantor to any holder or prospective purchaser of Securities
pursuant to Section 5(h), or in any amendment thereof or supplement thereto, 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, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantors 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 any such untrue statement or alleged
untrue statement or omission or alleged omission made in the Preliminary
Memorandum or the Final Memorandum, or in any amendment thereof or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Initial Purchasers through the
Representatives specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company and the Guarantors may
otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, the Guarantors, each of its or their
directors, each of its or their officers, and each person who controls the
Company or any Guarantor within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Company and the
Guarantors to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company and the
Guarantors by or on behalf of such Initial Purchaser through the Representatives
specifically for inclusion in the Preliminary Memorandum or the Final Memorandum
(or in any amendment or supplement thereto). This indemnity agreement will be in
addition to any liability which any Initial Purchaser may otherwise have. The
Company and the Guarantors acknowledge that the statements set forth in the last
paragraph of the cover page regarding the delivery of the Securities, and, under
the heading "Plan of Distribution," the paragraph related to over-allotment,
covering and stabilization transactions in the Preliminary Memorandum and the
Final Memorandum, constitute the only information furnished in writing by or on
behalf of the Initial Purchasers for inclusion in the Preliminary Memorandum or
the Final Memorandum (or in any amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event,
22
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in which
case the indemnifying party shall not thereafter be responsible for the fees and
expenses of any separate counsel retained by the indemnified party or parties
except as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will
not, without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantors and the Initial
Purchasers agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "LOSSES") to which the
Company or any Guarantor, and one or more of the Initial Purchasers may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors on the one hand and by the Initial
Purchasers on the other from the offering of the Securities; provided, however,
that in no case shall any Initial Purchaser (except as may be provided in any
agreement among the Initial Purchasers relating to the offering of the
Securities) be responsible for any amount in excess of the purchase discount or
commission applicable to the Securities purchased by such Initial Purchaser
hereunder. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Company, the Guarantors and the Initial
Purchasers shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and the
Guarantors on the one hand and of the Initial Purchasers on the other in
connection with the statements or omissions which resulted in such Losses, as
well as any other relevant equitable considerations. Benefits received by the
Company and the Guarantors shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) received by it, and benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions in each
23
case set forth on the cover page of the Final Memorandum. Relative fault shall
be determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company or a
Guarantor on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission. The Company, the
Guarantors and the Initial Purchasers agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation which does not take account of the equitable considerations
referred to above. Notwithstanding the provisions of this paragraph (d), 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 Initial Purchasers' obligations
to contribute pursuant to this Section 8(d) are several in proportion to their
respective purchase obligations hereunder and not joint. For purposes of this
Section 8, each person who controls an Initial Purchaser within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Initial Purchaser shall have the same rights to contribution as such
Initial Purchaser, and each person who controls the Company or a Guarantor
within the meaning of either the Act or the Exchange Act and each officer and
director of the Company and any Guarantor shall have the same rights to
contribution as the Company and the Guarantors, subject in each case to the
applicable terms and conditions of this paragraph (d).
9. Default by an Initial Purchaser. If any one or more Initial
Purchasers shall fail to purchase and pay for any of the Securities agreed to be
purchased by such Initial Purchaser hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Initial Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Initial Purchasers)
the Securities which the defaulting Initial Purchaser or Initial Purchasers
agreed but failed to purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting Initial Purchaser or Initial
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
amount of Securities set forth in Schedule I hereto, the remaining Initial
Purchasers shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting Initial
Purchasers do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Initial Purchaser, the Company or the
Guarantors. In the event of a default by any Initial Purchaser as set forth in
this Section 9, the Closing Date shall be postponed for such period, not
exceeding five Business Days, as the Representatives shall determine in order
that the required changes in the Final Memorandum or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Initial Purchaser of its liability, if any, to the Company, the
Guarantors or any nondefaulting Initial Purchaser for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in securities generally on the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange; (ii) a banking moratorium shall have been
declared
24
either by Federal or New York State authorities; or (iii) there shall have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war or other calamity or crisis the effect of
which on financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Memorandum (exclusive of
any amendment or supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Initial Purchasers set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation made by or on behalf of the Initial Purchasers or the Company
or any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment for
the Securities. The provisions of Sections 7 and 8 hereof shall survive the
termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing
and effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel;
or, if sent to the Company or any of the Guarantors, will be mailed, delivered
or telefaxed to Swift & Company, (▇▇▇) ▇▇▇-▇▇▇▇ and confirmed to it at Swift &
Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: Chief
Financial Officer.
13. Successors. This Agreement will inure to the benefit of
and be binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and, except as expressly set forth in Section 5(h) hereof, no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
25
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in The City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean, the date and time that this
Agreement is executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Material Adverse Effect" means a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Regulation D" shall mean Regulation D under the Act.
"Regulation S" shall mean Regulation S under the Act.
"▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission promulgated
thereunder.
26
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
between the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
SWIFT & COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
S&C HOLDCO 3, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SWIFT BEEF COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SWIFT PORK COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SWIFT BRANDS COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
27
▇▇▇▇▇▇ BROS. CO., INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ FOOD DISTRIBUTION COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ INTERNATIONAL SALES CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
For themselves and the other several
Initial Purchasers named in Schedule I
to the foregoing Agreement.
28
SCHEDULE I
Principal Amount of Securities
Initial Purchasers to Be Purchased
------------------ ------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................................... $ 160,800,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................................. 107,200,000
---------------
Total......................................................... $ 268,000,000
29
EXHIBIT A
SELLING RESTRICTIONS FOR OFFERS AND
SALES OUTSIDE THE UNITED STATES
(1)(a) The Securities have not been and will not be registered
under the Act and may not be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons except in accordance with Regulation
S under the Act or pursuant to an exemption from the registration requirements
of the Act. Each Initial Purchaser represents and agrees that, except as
otherwise permitted by Section 4(a)(i) of the Agreement to which this is an
exhibit, it has offered and sold the Securities, and will offer and sell the
Securities, (i) as part of their distribution at any time; and (ii) otherwise
until 40 days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 of Regulation S under the Act.
Accordingly, each Initial Purchaser represents and agrees that neither it, nor
any of its Affiliates nor any person acting on its or their behalf has engaged
or will engage in any directed selling efforts with respect to the Securities,
and that it and they have complied and will comply with the offering
restrictions requirement of Regulation S. Each Initial Purchaser agrees that, at
or prior to the confirmation of sale of Securities (other than a sale of
Securities pursuant to Section 4(a)(i) of the Agreement to which this is an
exhibit), it shall have sent to each distributor, dealer or person receiving a
selling concession, fee or other remuneration that purchases Securities from it
during the distribution compliance period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "ACT") and may not be
offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until 40 days after
the later of the commencement of the offering and September
19, 2002, except in either case in accordance with Regulation
S or Rule 144A under the Act. Terms used above have the
meanings given to them by Regulation S."
(b) Each Initial Purchaser also represents and agrees that it
has not entered and will not enter into any contractual arrangement
with any distributor with respect to the distribution of the
Securities, except with its Affiliates or with the prior written
consent of the Company.
(c) Terms used in this section have the meanings given to them
by Regulation S.
(2) Each Initial Purchaser represents and agrees that (i) it
has not offered or sold and prior to the expiry of the period of six months from
the closing of the offering of the Securities, will not offer or sell any
Securities to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments, whether as principal or agent, for purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has
complied and will comply with all applicable provisions of the Financial
Services and Markets Act 2000 (the "FSMA") with respect to anything done by it
in relation to the Securities in, from or otherwise involving the United
Kingdom; and (iii) it has only communicated or caused to be communicated and
will only communicate or cause to be communicated any invitation or inducement
to engage in investment activity (within the meaning of section 21 of the FSMA)
received by it in connection with the issue or sale of any Securities in
circumstances in which section 21(1) of the FSMA would not apply to the Company.
2
EXHIBIT B
SIGNIFICANT SUBSIDIARIES
Swift Beef Company
Swift Pork Company
S&C Australia Holdco Pty. Ltd.
Australia Meat Holdings Pty. Limited
EXHIBIT C
FOREIGN JURISDICTIONS
COMPANY FOREIGN QUALIFICATION
------- ---------------------
Issuer:
Swift & Company Colorado
Guarantors:
S&C Holdco 3, Inc. Colorado
Swift Beef Company California
Colorado
Florida
Idaho
Illinois
Iowa
Kansas
Kentucky
Missouri
Nebraska
New Jersey
Ohio
Pennsylvania
Texas
Utah
Swift Pork Company Arizona
Arkansas
California
Colorado
Florida
Georgia
Hawaii
Illinois
Indiana
Iowa
Kansas
Kentucky
Louisiana
Michigan
Minnesota
Mississippi
Missouri
COMPANY FOREIGN QUALIFICATION
------- ---------------------
Nevada
New Hampshire
New York
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Utah
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
West Virginia
Wisconsin
Swift Brands Company Colorado
▇▇▇▇▇▇ Bros. Co., Inc. None
▇▇▇▇▇▇▇ Food Distribution Company Arizona
California
Delaware
Florida
Georgia
Hawaii
Illinois
Kentucky
Maryland
Massachusetts
Nebraska
New Hampshire
New Jersey
New Mexico
Pennsylvania
Texas
▇▇▇▇▇▇▇ International Sales Corporation None
▇▇▇▇▇▇▇, Inc. California
Colorado
Idaho
2
COMPANY FOREIGN QUALIFICATION
------- ---------------------
Illinois
Kansas
Kentucky
Missouri
Pennsylvania
Texas
Utah
3