Exhibit 1.1
The Registrant may enter into a Selling Agent Agreement substantially
in the form of the following exhibit relating to the offer and sale of
certain debt securities to be issued by the registrant from time to time
pursuant to its Registration Statement No. 333-96635, filed with the
Commission on July 17, 2002. This Report is incorporated by reference in
such Registration Statement.
SELLING AGENT AGREEMENT
by and among
ANHEUSER-▇▇▇▇▇ COMPANIES, INC.
and the
Agents named herein
[___________], 2002
[__________], 2002
To the Agents listed on
the signature page hereto.
ANHEUSER-▇▇▇▇▇ COMPANIES, INC., a Delaware corporation (the "Company"),
proposes to issue and sell up to $_____________ aggregate principal amount
of its Anheuser-▇▇▇▇▇ Companies, Inc. InterNotes(SM)(or the equivalent
thereof in other currencies including composite currencies) due nine months
or more from date of issue (the "Notes"). The Notes are to be issued under
an Indenture dated as of July 1, 2001 (the "Indenture") between the Company
and JPMorgan Chase Bank (formerly The Chase Manhattan Bank) (the "Trustee")
and will be issued in such currencies and in such denominations thereof and
will bear interest at such rates to be provided in a supplement to the
Prospectus referred to below.
Subject to the terms and conditions contained in this Agreement, the
Company hereby (1) appoints Incapital LLC as purchasing agent (the
"Purchasing Agent"), (2) appoints each of you as agent of the Company
("Agent"), on a non-exclusive basis, for the purpose of soliciting offers to
purchase the Notes and each of you hereby agrees to use your reasonable best
efforts to solicit offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to
time specify and in accordance with the terms hereof, and after consultation
with the Purchasing Agent, and (3) agrees that whenever the Company
determines to sell Notes pursuant to this Agreement, such Notes shall be
sold pursuant to a Terms Agreement (as defined herein) relating to such sale
in accordance with the provisions of Section 5 hereof between the Company
and the Purchasing Agent, with the Purchasing Agent purchasing such Notes as
principal for resale to other Agents or dealers (the "Selected Dealers"),
each of whom will purchase as principal. The Company reserves the right to
enter into agreements substantially identical hereto with other agents.
1. REGISTRATION STATEMENT.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-96635), relating to its
debt securities, including the Notes, and the offering thereof from time to
time, in accordance with Rule 415 under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement, including the
prospectus constituting a part thereof and the exhibits thereto, as amended
at the date of the sale of any Notes, is hereinafter referred to as the
"Registration Statement." The Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Company
proposes to file with the SEC from time to time, pursuant to Rule 424(b)
under the 1933 Act, supplements to the prospectus relating to the Notes
included in the Registration Statement, which will describe certain terms of
the Notes. Such prospectus in the form in which it appears in the
Registration Statement is called the "Basic Prospectus." The term
"Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements specifically relating to any Notes sold pursuant
to this Agreement (the "Prospectus Supplement"), as filed with the SEC
pursuant to Rule 424 under the 1933 Act. Any reference herein to the
Registration Statement, Basic Prospectus and Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the Securities
Exchange Act of 1934, as amended (the "1934 Act").
2. CONDITIONS TO AGENTS' OBLIGATIONS
The Agents' obligations hereunder are subject to the following
conditions:
(a) On the date hereof, the Agents shall have received the
following legal opinions, dated as of the date hereof and in form and
substance reasonably satisfactory to the Agents:
(i) an opinion of the General Counsel or Associate General
Counsel of the Company, substantially in the form heretofore
delivered to each of you; and
(ii) an opinion of ▇▇▇▇▇ ▇▇▇▇ LLP or other counsel to the
Company, substantially in the form heretofore delivered to each of
you.
(b) On the date hereof, the Agents shall have received a
certificate of the Company, signed by the Chairman of the Board, the
President, the Treasurer, any Assistant Treasurer, or any Vice President,
dated as of the date hereof, to the effect that, to the best of the
knowledge of the signer of such certificate (i) since the date of the most
recent financial statements included or incorporated by reference in the
Prospectus, as amended or supplemented, there has been no material adverse
change in the condition of the Company and its subsidiaries, taken as a
whole, from that set forth in the Registration Statement and the Prospectus,
as amended or supplemented, (ii) the other representations and warranties of
the Company contained in this Agreement are true and correct in all material
respects on and as of the date of such certificate, (iii) the Company has
performed or complied with all agreements and satisfied all conditions on
its part to be performed or satisfied hereunder at or prior to the date of
such certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or threatened by the SEC.
(c) On the date hereof, the Agents shall have received a letter
from the Company's independent public accountants, dated as of the date
hereof and in form and substance reasonably satisfactory to the Agents,
confirming that they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
regulations promulgated thereunder (the "1933 Act Regulations"), and
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(d) On the date hereof, counsel to the Agents shall have been
furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance
and sale of Notes as herein contemplated, or in order to evidence the
accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, contained herein; and all
proceedings taken by the Company in connection with the issuance and sale of
Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Purchasing Agent and to counsel to the Agents.
The obligations of the Purchasing Agent to purchase Notes as
principal, both under this Agreement and under any Terms Agreement, are
subject to the conditions that (i) no stop order suspending the
effectiveness of the Registration Statement shall be in effect, and no
proceedings for such purpose shall be pending before or threatened by the
SEC and (ii) there shall have been no material adverse change in the
condition of the Company and its subsidiaries, taken as a whole, from that
set forth in the Registration Statement or the Prospectus, as supplemented
or amended, each of which conditions shall be met on the date of the Terms
Agreement and on the corresponding Settlement Date (as defined herein).
Further, if specifically called for by any written agreement by the
Purchasing Agent, including a Terms Agreement, to purchase Notes as
principal, the Purchasing Agent's obligations hereunder and under such
agreement, shall be subject to such additional conditions, including those
set forth in clauses (a), (b) and (c) above, as agreed to by the parties,
each of which such agreed conditions shall be met on the corresponding
Settlement Date.
3. COVENANTS OF THE COMPANY.
In further consideration of your agreements herein contained, the
Company covenants as follows:
(a) The Company will notify the Agents immediately of (i) the
effectiveness of any amendment to the Registration Statement, (ii) the
filing of any amendment or supplement to the Basic Prospectus or any
document to be filed pursuant to the 1934 Act which will be incorporated by
reference in the Basic Prospectus, (iii) any request by the SEC for any
amendment or supplement to the Basic Prospectus or for
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additional information relating thereto (other than such a request with
respect to a document filed with the SEC pursuant to the 1934 Act which will
be incorporated by reference in the Basic Prospectus), and (iv) the issuance
by the SEC of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will use its reasonable best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) The Company will give the Agents notice of its intention to
file or prepare any amendment to the Registration Statement or any
Prospectus Supplement relating to the Notes (other than an amendment or
supplement providing solely for a change in the interest rates or maturity
dates of Notes or similar changes or an amendment or supplement effected by
the filing of a document with the SEC pursuant to the ▇▇▇▇ ▇▇▇) and, upon
request, will furnish the Agents with copies of any such registration
statement or amendment or supplement proposed to be filed or prepared a
reasonable time in advance of such proposed filing or preparation, as the
case may be, and will not file any such registration statement or amendment
or supplement in a form as to which the Agents or your counsel reasonably
object; provided, however, that (1) the foregoing requirement shall not
apply (i) to any of the Company's periodic filings with the SEC required to
be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act,
copies of which filings the Company will cause to be delivered to you
promptly after being filed with the SEC, or (ii) to any supplements which
relate to securities offered pursuant to arrangements with other purchasers
or agents, and which do not relate to the Notes being offered by you and (2)
in the case of a supplement which relates to the Notes being offered by
some, but not all, of the Agents, the Company shall not be required to
provide a copy to the other Agents. Subject to the foregoing sentence, the
Company will promptly cause each Prospectus Supplement to be filed with the
SEC pursuant to Rule 424(b).
(c) The Company will deliver to the Agents without charge a copy
of the Registration Statement (as originally filed) and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated by reference in the Prospectus). The
Company will furnish to the Agents as many copies of the Prospectus (as
amended or supplemented) as the Agents shall reasonably request so long as
the Agents are required to deliver a Prospectus in connection with sales or
solicitations of offers to purchase the Notes under the 1933 Act.
(d) The Company will prepare, with respect to any Notes to be sold
through or to the Agents pursuant to this Agreement, a pricing supplement
with respect to such Notes in substantially the form attached as Exhibit D
(a "Pricing Supplement") and will file such Pricing Supplement with the SEC
pursuant to Rule 424(b) under the 1933 Act not later than the close of
business on the second business day after the date on which such Pricing
Supplement is first used.
(e) Except as otherwise provided in subsection (i) of this
Section, if at any time during the term of this Agreement any event shall
occur or condition exist as a result of which it is necessary, in the
reasonable opinion of your counsel or counsel for the Company, to further
amend or supplement the Prospectus in order that the Prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein not misleading in
light of the circumstances existing at the time the Prospectus is delivered
to a purchaser, or if it shall be necessary, in the reasonable opinion of
either such counsel, to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or
the 1933 Act Regulations, immediate notice shall be given, and confirmed in
writing, to the Agents to cease the solicitation of offers to purchase the
Notes and to cease sales of any Notes by the Purchasing Agent, and the
Company will promptly prepare and file with the SEC such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and Prospectus comply with
such requirements.
(f) The Company will make generally available to its security
holders and to the Agents as soon as practicable an earnings statement (in
form complying with the provisions of Section 11(a) and of Rule
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158 under the ▇▇▇▇ ▇▇▇) covering a twelve-month period beginning after the
date of the sale of any of the Notes hereunder.
(g) The Company will endeavor to qualify the Notes for offering
and sale under the applicable securities or Blue Sky laws of such states and
other jurisdictions of the United States as the Agents may reasonably
request; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified.
(h) The Company, during the period when the Prospectus is required
to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act.
(i) The Company shall not be required to comply with the
provisions of subsection (e) of this Section or the provisions of Sections
7(b), (c) and (d) during any period from the time (i) the Agents have
suspended solicitation of purchases of the Notes pursuant to a direction
from the Company and (ii) the Agents shall not then hold any Notes as
principal purchased from the Purchasing Agent to the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or
shall subsequently agree for the Purchasing Agent to purchase Notes as
principal.
(j) If, at any time when a prospectus relating to the Notes is
required to be delivered under the 1933 Act, any event occurs or condition
exists as a result of which the Registration Statement or the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact, or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if, in the opinion of the Company, it is necessary at any
time to amend or supplement the Registration Statement or the Basic
Prospectus, as then amended or supplemented, to comply with the 1933 Act,
the Company promptly will notify you to suspend solicitation of offers to
purchase Notes and, if so notified by the Company, you shall forthwith
suspend such solicitation and cease using the Prospectus, as then amended or
supplemented; and in such circumstance, the Company shall amend or
supplement the Registration Statement or Prospectus, as then amended or
supplemented, the Company will so advise you promptly by telephone (with
confirmation in writing) and will prepare and cause to be filed promptly
with the SEC an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, which will include a
description of such facts or events and/or will correct such statement or
omission or effect such compliance and will supply such amended or
supplemented Prospectus to each of you in such quantities as each of you may
reasonably request; and, if such amendment or supplement and any documents,
certificates and opinions furnished to each of you pursuant to paragraphs
(b), (c) and (d) of Section 7 below in connection with the preparation or
filing of such amendment or supplement are reasonably satisfactory in all
respects to each of you, upon the filing of such amendment or supplement
with the SEC or effectiveness of an amendment to the Registration Statement
you will resume the solicitation of offers to purchase the Notes hereunder.
Notwithstanding the foregoing, the provisions of this Section may be
modified by the parties in any Terms Agreement or schedule thereto.
4. SOLICITATION OF OFFERS FOR NOTES.
(a) The Agents propose to solicit offers to purchase the Notes
upon the terms and conditions set forth herein and in the Prospectus and
upon the terms communicated to the Agents from time to time by the Company
or the Purchasing Agent, as the case may be. For the purpose of such
solicitation the Agents will use the Prospectus as then amended or
supplemented, and the Agents will solicit offers to purchase only as
permitted or contemplated thereby and herein and will solicit offers to
purchase the Notes only as permitted by the 1933 Act and the applicable
securities laws or regulations of any jurisdiction, and each of the Agents
hereby represents and agrees that it will not make any representations or
use any information other than that set forth in the Prospectus as then
amended or
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supplemented or solicit any offer to purchase the Notes other than by means
of the Prospectus as then amended or supplemented. The Company reserves the
right, in its sole discretion, to suspend solicitation of offers to purchase
the Notes commencing at any time for any period of time or permanently. Upon
receipt of instructions (which may be given orally) from the Company, the
Agents will suspend promptly solicitation of offers to purchase until such
time as the Company has advised the Agents that such solicitation may be
resumed.
Unless otherwise instructed by the Company, the Agents are
authorized to solicit offers to purchase the Notes only in
denominations of $1,000 or more (in multiples of $1,000). The Agents
are not authorized to appoint subagents or to engage the services of
any other broker or dealer in connection with the offer or sale of the
Notes without the consent of the Company. Unless otherwise instructed
by the Company, the Purchasing Agent shall communicate to the Company,
orally or in writing, each offer to purchase Notes. The Company shall
have the sole right to accept offers to purchase Notes and may reject
any proposed offers to purchase Notes as a whole or in part. Each Agent
shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, as a whole or in part, and any such
rejection shall not be deemed a breach of its agreements contained
herein. The Company agrees to pay the Purchasing Agent, as
consideration for soliciting offers to purchase Notes pursuant to a
Terms Agreement, a concession in the form of a discount equal to the
percentages of the initial offering price of each Note actually sold as
set forth in Exhibit A hereto (the "Concession"). The Purchasing Agent
and the other Agents or Selected Dealers will share the above-mentioned
Concession in such proportions as they may agree.
Unless otherwise authorized by the Company, all Notes shall be sold
to the public at a purchase price not to exceed 100% of the principal
amount thereof, plus accrued interest, if any. Such purchase price
shall be set forth in the confirmation statement of the Agent or
Selected Dealer responsible for such sale and delivered to the
purchaser along with a copy of the Prospectus (if not previously
delivered) and Pricing Supplement.
(b) Procedural details relating to the issue and delivery of, and
the solicitation of purchases and payment for, the Notes are set forth in
the Administrative Procedures attached hereto as Exhibit B (the
"Procedures"), as amended from time to time. Unless otherwise provided in a
Terms Agreement, the provisions of the Procedures shall apply to all
transactions contemplated hereunder. The Agents and the Company each agree
to perform the respective duties and obligations specifically provided to be
performed by each in the Procedures as amended from time to time. The
Procedures may only be amended by written agreement of the Company and the
Agents.
5. TERMS AGREEMENT.
Each sale of Notes shall be made in accordance with the terms of this
Agreement and a separate agreement (a "Terms Agreement") to be entered into
which will provide for the sale of such Notes to, and the purchase and
reoffering thereof, by the Purchasing Agent as principal (which may be
substantially in the form of Exhibit C attached hereto or which may be an
oral agreement confirmed by an exchange of a standard form of a written
confirmation between an Agent and the Company). A Terms Agreement may also
specify certain provisions relating to the reoffering of such Notes by the
Purchasing Agent. The offering of Notes by the Company hereunder and the
Purchasing Agent's agreement to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the
representations, warranties and agreements of the Company herein contained
and shall be subject to the terms and conditions herein set forth. Each
Terms Agreement (whether pursuant to a Terms Agreement substantially in the
form of Exhibit C attached hereto or a written confirmation as described
above) shall describe the Notes to be purchased pursuant thereto by the
Purchasing Agent as principal, and may specify, among other things, the
principal amount of Notes to be purchased, the interest rate or formula and
maturity date or dates of such Notes, the interest payment dates, if any,
the net proceeds to the Company, the initial public offering price at which
the Notes are proposed to be reoffered, and the time and place of delivery
of and payment for such Notes (the "Settlement Date"), whether the Notes
provide
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for a Survivor's Option, whether the Notes are redeemable or repayable and
on what terms and conditions, and any other relevant terms. In connection
with the resale of the Notes purchased, without the consent of the Company,
the Agents are not authorized to appoint subagents or to engage the service
of any other broker or dealer, nor may you reallow any portion of the
Concession paid to you. Any sales in connection with fixed price offerings
shall be at a discount which shall not exceed the amount set forth in the
Prospectus, as amended or supplemented, in connection with the sale of such
Notes.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (including any purchase by the Purchasing Agent as
principal, pursuant to a Terms Agreement or otherwise), as of each
Settlement Date, and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented (if such amendment or supplement
applies to the Notes) or there is filed with the SEC any document
incorporated by reference into the Prospectus (each of the times referenced
above being referred to herein as a "Representation Date") as follows:
(a) The Company meets the requirements for use of Form S-3
under the 1933 Act, and has filed with the SEC the Registration
Statement. The Indenture has been qualified under the Trust
Indenture Act and the Company has duly authorized the issuance of
the Notes. The Registration Statement, as amended at the date of
this Agreement, meets the requirements set forth in Rule
415(a)(1)(x) under the Act and complies in all other material
aspects with said Rule.
(b) (i) Each document, if any, filed or to be filed pursuant
to the 1934 Act and incorporated by reference in the Prospectus
complied, or will comply, when so filed in all material respects
with such Act and the rules and regulations thereunder, (ii) each
part of the Registration Statement (including the documents
incorporated by reference therein), filed with the SEC pursuant to
the 1933 Act relating to the Notes, when such part became
effective, did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the
Registration Statement and the Prospectus comply and, as amended
or supplemented, if applicable, will comply in all material
respects with the 1933 Act and the applicable rules and
regulations thereunder and (iv) the Registration Statement and the
Prospectus at the date of the Prospectus Supplement do not contain
and, as further amended or supplemented, if applicable, as of
their respective dates, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, except that the representations and warranties set
forth in this Section 6(b) do not apply to statements or omissions
in the Registration Statement or the Prospectus which are based
upon information furnished to the Company in writing by you
expressly for use therein or to that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification of the Trustee (Form T-1) under the Trust Indenture
Act of the Trustee.
7. AFFIRMATION OF REPRESENTATIONS; AMENDMENTS TO REGISTRATION STATEMENT.
(a) Each acceptance by the Company of an offer for the purchase of
Notes and each sale of Notes to any of you pursuant to a Terms Agreement
shall be deemed to be an affirmation that the representations and warranties
of the Company contained in this Agreement and in any certificate
theretofore delivered to any of you pursuant hereto are true and correct in
all material respects at the time of such acceptance or sale, as the case
may be, and an undertaking that such representations and warranties will be
true and correct in all material respects at the time of delivery to the
purchaser or his agent, or to each of you, of the Notes relating to such
acceptance or sale, as the case may be, as though made at and as of each
such time (and it is understood that such representations and warranties
shall relate to the Registration Statement and the Basic Prospectus as
amended and supplemented to each such time).
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(b) Each time the Registration Statement or the Basic Prospectus
is amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates or maturities offered on
the Notes, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), or if so indicated in the
applicable Terms Agreement, each time the Company sells Notes to any of you
pursuant to a Terms Agreement, the Company will deliver or cause to be
delivered forthwith to the applicable Agent a certificate of the Company
signed by the Chairman of the Board, the President, the Treasurer, any
Assistant Treasurer or any Vice President, dated the date of the
effectiveness of such amendment or the date of filing of such supplement, or
the date of such sale, as the case may be, in form reasonably satisfactory
to the applicable Agent, to the effect that the statements of the Company
contained in the certificate referred to in Section 2(b) which was last
furnished to such Agent (either pursuant to Section 2(b) or pursuant to this
Section 7(b)), are true and correct as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or,
in lieu of such certificate, a certificate of the same tenor as the
certificate referred to in Section 2(b) relating to the Registration
Statement and the Prospectus as amended and supplemented to the time of
delivery of such certificate.
(c) Each time the Registration Statement or the Basic Prospectus
is amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates or maturities offered on
the Notes, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), if in your reasonable
judgment the information contained in the amendment or supplement is of such
a nature that opinions of counsel should be furnished, or if so indicated in
the applicable Terms Agreement, each time the Company sells Notes to any of
you pursuant to a Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to the applicable Agent a written opinion of counsel for
the Company. Any such opinion shall be dated the date of the effectiveness
of such amendment or the date of filing of such supplement, or the date of
such sale, as the case may be, in a form satisfactory to such Agent and
shall be of the same tenor as the opinion referred to in Section 2(a) but
modified to relate to the Registration Statement and the Basic Prospectus as
amended and supplemented to the time of delivery of such opinions. In lieu
of any opinion, counsel last furnishing such an opinion to such Agent may
furnish to such Agent a letter to the effect as though it were dated the
date of such letter authorizing reliance on such last opinion (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Basic Prospectus as amended and supplemented to the time
of delivery of such letter authorizing reliance).
(d) Each time the Registration Statement or the Basic Prospectus
is amended or supplemented (other than by an amendment or supplement
providing solely for a change in the interest rates or maturities offered on
the Notes, for a change deemed immaterial in your reasonable opinion or for
the terms of securities not being offered by you), or to set forth amended
or supplemental financial information which is included or incorporated by
reference in the Registration Statement or the Basic Prospectus, or if so
indicated in the applicable Terms Agreement, each time the Company sells
Notes to you pursuant to a Terms Agreement, the Company shall cause its
independent public accountants forthwith to furnish you with a letter, dated
the date of the effectiveness of such amendment or the date of filing of
such supplement, or the date of such sale, as the case may be, in a form
reasonably satisfactory to you, of the same tenor as the letter referred to
in Section 2(c) but modified to relate to the Registration Statement and the
Basic Prospectus as amended or supplemented to the date of such letter with
such changes as may be necessary to reflect such amended or supplemented
financial information included or incorporated by reference in the
Registration Statement or the Basic Prospectus as amended or supplemented,
provided, however, that, with respect to any financial information or other
matter, such letter may reconfirm as true and correct at such date, as
though made at and as of such date, rather than repeat statements concerning
such financial information or other matters made in the letter referred to
in Section 2(c) hereof which was last furnished to the Agent.
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8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of you
and each person, if any, who controls any of you within the meaning of
either Section 15 of the Act or Section 20 of the 1934 Act from and against
any and all losses, claims, damages or liabilities (including the reasonable
fees and expenses of counsel in connection with any governmental or
regulatory investigation or proceeding) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement as originally filed or in any amendment thereof or the Prospectus
(if used within the period set forth in [paragraph (c) of Section 3] hereof
and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability is caused by any such untrue statement or
alleged untrue statement or omission or alleged omission made therein based
upon information furnished in writing to the Company by any of you
specifically for use in connection with the preparation thereof or made
therein in the Statement of Eligibility and Qualification of the Trustee
(Form T-1) under the Trust Indenture Act of the Trustee.
(b) Each Agent agrees severally to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement and
any person controlling the Company to the same extent as the foregoing
indemnity from the Company to each of you, but only with reference to
information relating to such Agent furnished in writing by such Agent
expressly for use in the Registration Statement or the Prospectus.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in
such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed
to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and representation of both parties by the
same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all such indemnified parties and
that all such reasonable fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by you in the case of
parties indemnified pursuant to paragraph (a) above and by the Company in
the case of parties indemnified pursuant to paragraph (b) above. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
9. TERMINATION.
The Company may elect to suspend or terminate the offering of Notes
under this Agreement at any time; the Company also (as to any one or more of
the Agents) or any Agent (as to itself) may terminate the appointment and
arrangements described in this Agreement. Upon receipt of instructions from
the Company, the Purchasing Agent shall suspend or terminate the
participation of any Selected Dealer
8
specified by the Company. The Company shall promptly notify the other
parties in writing of any such termination.
The Purchasing Agent may, and, upon the request of an Agent with
respect to any Notes being purchased by such Agent shall, terminate any
agreement hereunder by the Purchasing Agent to purchase such Notes,
immediately upon notice to the Company at any time prior to the Settlement
Date relating thereto, (i) if there has been, since the date of such
agreement or since the respective dates as of which information is given in
the Registration Statement, any material adverse change in the condition of
the Company and its subsidiaries considered as one enterprise, or (ii) if
there shall have occurred, since the date of such agreement, any outbreak or
material escalation of hostilities or other national or international
calamity or crisis, financial or otherwise, the effect of which is such as
to make it, in the sole judgment of the Purchasing Agent or such Agent,
impracticable to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if, since the date of such agreement, trading in any
securities of the Company has been suspended by the SEC or a national
securities exchange, or if trading generally on either the American Stock
Exchange or the New York Stock Exchange shall have been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of said exchanges or by
order of the SEC or any other governmental authority, or (iv) if, since the
date of such agreement, a banking moratorium shall have been declared by
either Federal or New York authorities.
Any Terms Agreement shall be subject to termination on the terms set
forth or incorporated by reference therein. The termination of this
Agreement shall not require termination of any agreement by the Purchasing
Agent to purchase Notes as principal, and the termination of any such
agreement shall not require termination of this Agreement.
If this Agreement is terminated, Section 3(c) and (e), Section 8 and
Section 10(c) hereof shall survive and shall remain in effect; provided that
if at the time of termination of this Agreement an offer to purchase Notes
has been accepted by the Company but the time of delivery to the Purchasing
Agent of such Notes has not occurred, the provisions of all of Section 3,
Section 4(b) and Section 5 shall also survive until time of delivery.
10. MISCELLANEOUS.
(a) All communications hereunder will be in writing and effective
only on receipt, and if sent to any of you, will be mailed, delivered, sent
via facsimile to the addresses and facsimile numbers set forth on Annex A
hereto, or if sent to the Company, will be mailed, delivered, sent via
facsimile transmission (314-765-9005) to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Vice President and Treasurer; with copies to the
Vice President and Secretary and to the Vice President and General Counsel
at the same address. Such addresses for notices may be changed by any party
by written notice to the others as aforesaid.
(b) This Agreement shall be binding upon the Agents and the
Company, and inure solely to the benefit of the Agents and the Company and
any other person expressly entitled to indemnification hereunder and the
respective personal representatives, successors and assigns of each, and no
other person shall acquire or have any rights under or by virtue of this
Agreement.
(c) This Agreement shall be governed by and construed in
accordance with the substantive laws of the State of New York.
(d) If this Agreement is executed by or on behalf of any party,
such person hereby states that at the time of the execution of this
Agreement he has no notice of revocation of the power of attorney by which
he has executed this Agreement as such attorney.
(e) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including: (i) the preparation and
filing of the Registration Statement and all amendments
9
thereto, (ii) the preparation, issuance and delivery of the Notes, (iii) the
fees and disbursements of the Company's accountants and of the Trustee and
its counsel, (iv) the reasonable fees and disbursements of counsel for the
Agents in connection with the preparation of this Agreement and the
prospectus supplement relating to the Notes, (v) the qualification of the
Notes under securities laws in accordance with the provisions of Section
3(g), including filing fees and the reasonable fees and disbursements to
counsel in connection therewith, (vi) the printing and delivery to you in
quantities as hereinabove stated of copies of the Registration Statement and
all amendments or supplements thereto, (vii) the printing and delivery to
you of copies of the Indenture, (viii) any fees charged by rating agencies
for the rating of the Notes, (ix) any advertising expenses incurred with the
approval of the Company, and (x) the fees and expenses, if any, incurred
with respect to any filing with the National Association of Securities
Dealers, Inc.
(f) This Agreement may be executed by each of the parties hereto
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered,
shall be deemed to be an original, but all such counterparts shall together
constitute but one and the same instrument. Facsimile signatures shall be
deemed original signatures.
If the foregoing is in accordance with your understanding, please sign
and return to us a counterpart hereof, and upon acceptance hereof by you,
this letter and such acceptance hereof shall constitute a binding agreement
between the Company and you.
Very truly yours,
ANHEUSER-▇▇▇▇▇ COMPANIES, INC.
By:
----------------------
Name:
Title:
Confirmed and accepted
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By:
-----------------------
Name:
Title:
INCAPITAL LLC
By:
-----------------------
Name:
Title:
10
ANNEX A
AGENT CONTACT INFORMATION
-------------------------
Banc of America Securities LLC
Bank of America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Incapital LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
11
EXHIBIT A
DEALER AGENT PROGRAM
--------------------
The following Concessions are payable as a percentage of the non-discounted
Price to Public of each Note sold through the Purchasing Agent.
EXHIBIT B
ADMINISTRATIVE PROCEDURES
EXHIBIT C
TERMS AGREEMENT
, 2002
---------
Anheuser-▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
------------------------------
The undersigned agrees to purchase the following aggregate principal amount
of Anheuser-▇▇▇▇▇ Companies, Inc. InterNotes: $____________
The terms of such Notes shall be as follows:
--------------------------------------------------------------------------------------------------
CUSIP Number:
--------------------------------------------------------------------------------------------------
Interest Rate: %
--------------------------------------------------------------------------------------------------
Maturity Date:
--------------------------------------------------------------------------------------------------
Price to Public:
--------------------------------------------------------------------------------------------------
Agent's Concession: %
--------------------------------------------------------------------------------------------------
Net Proceeds to Issuer:
--------------------------------------------------------------------------------------------------
Settlement Date, Time and Place:
--------------------------------------------------------------------------------------------------
Survivor's Option:
--------------------------------------------------------------------------------------------------
Interest Payment Frequency:
--------------------------------------------------------------------------------------------------
Optional Redemption/Repayment, if any:
--------------------------------------------------------------------------------------------------
Initial Redemption/Repayment Date[s]:
--------------------------------------------------------------------------------------------------
Redemption/Repayment Price: Initially % of Principal Amount and
---
declining by % of the Principal Amount on
---
each anniversary of the Initial
Redemption/Repayment Date until the
Redemption/Repayment Price is 100% of the
Principal Amount.
--------------------------------------------------------------------------------------------------
[Any other terms and conditions agreed to by the Purchasing Agent and the Company]
INCAPITAL LLC
By:
------------------
Title:
------------------
ACCEPTED
ANHEUSER-▇▇▇▇▇ COMPANIES, INC.
By:
Title:
Exhibit D
Form of Pricing Supplement
--------------------------