▇▇▇▇ Food Company, Inc.
Debt Securities
---------------
Underwriting Agreement
October 1, 1998
Chase Securities Inc.,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Deutsche Bank Securities Inc.,
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC,
First Union Capital Markets, a division of
Wheat First Securities, Inc.,
c/o Chase Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear Sirs:
From time to time ▇▇▇▇ Food Company, Inc., a
Hawaii corporation (the "Company"), proposes to enter into
one or more Pricing Agreements (each a "Pricing Agreement")
in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject
to the terms and conditions stated herein and therein, to
issue and sell to the firms named in Schedule I to the
applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and
the securities specified therein) certain of its debt
securities (the "Securities") specified in Schedule II to
such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of
Designated Securities shall be as specified in the Pricing
Agreement relating thereto and in or pursuant to the
indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may
be made from time to time to the Underwriters of such
Securities, for whom the firms designated as representatives
of the Underwriters of such Securities in the Pricing
Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers
to a single firm acting as sole representative of the
Underwriters and to an Underwriter or Underwriters who act
without any firm being designated as its or their
representatives. This Underwriting Agreement shall not be
construed as an obligation of the Company to sell any of the
Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to
issue and sell any of the Securities and the obligation of
any of the Underwriters to purchase any of the Securities
shall be evidenced by the Pricing Agreement with respect to
the Designated Securities specified therein. Each Pricing
Agreement shall specify the aggregate principal amount of
such Designated Securities, the initial public offering
price of such Designated Securities, the purchase price to
the Underwriters of such Designated Securities, the names of
the Underwriters of such Designated Securities, the names of
the Representatives of such Underwriters and the principal
amount of such Designated Securities to be purchased by each
Underwriter and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor.
The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement
and prospectus with respect thereto) the terms of such
Designated Securities. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts),
and may be evidenced by an exchange of telegraphic
communications or any other rapid transmission device
designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and
not joint.
2. The Company represents and warrants to, and
agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File
No. 333-61689) and, pursuant to Rule 429, a prior
registration statement on Form S-3 (File No. 33-64984)
(collectively, the "Initial Registration Statement") in
respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission");
the Initial Registration Statement and any post-
effective amendment thereto, each in the form
heretofore delivered or to be delivered to the
Representatives and, excluding exhibits to the Initial
Registration Statement, but including all documents
incorporated by reference in the prospectus contained
therein, to the Representatives for each of the other
Underwriters have been declared effective by the
Commission in such form; other than a registration
statement, if any, increasing the size of the offering
(a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "Act"), which became effective
upon filing, no other document with respect to the
Initial Registration Statement or document incorporated
by reference therein has heretofore been filed or
transmitted for filing with the Commission (other than
prospectuses filed pursuant to Rule 424(b) of the rules
and regulations of the Commission under the Act, each
in the form heretofore delivered to the
Representatives); and no stop order suspending the
effectiveness of the Initial Registration Statement,
any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary
prospectus included in the Initial Registration
Statement or filed with the Commission pursuant to Rule
424(a) of the Act is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial
Registration Statement, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained
in the Initial Registration Statement at the time such
part of the Initial Registration Statement became
effective but excluding Form T-1, each as amended at
the time such part of the Initial Registration
Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter called the
"Registration Statement"; the prospectus relating to
the Securities, in the form in which it has most
recently been filed, or transmitted for filing, with
the Commission on or prior to the date of this
Agreement, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or
the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein
pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or
supplement to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment to the Initial
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after
the effective date of the Initial Registration
Statement that is incorporated by reference in the
Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed
to refer to the Prospectus as amended or supplemented
in relation to the applicable Designated Securities in
the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof, including any documents
incorporated by reference therein as of the date of
such filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were
filed with the Commission, as the case may be,
conformed in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and
none of such documents contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto, when such documents become effective or are
filed with the Commission, as the case may be, will
conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder and
will not contain an 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; provided, however, that this representation
and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to
the Registration Statement or the Prospectus will
conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and
regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as
of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an 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; provided, however, that this representation
and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Securities;
(d) Neither the Company nor any of its
subsidiaries has sustained since the date of the latest
audited financial statements included or incorporated
by reference in the Prospectus any material loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given
in the Registration Statement and the Prospectus, there
has not been any change in the capital stock or long-
term debt of the Company or any of its subsidiaries or
any material adverse change, or any development
relating specifically to the Company which the Company
reasonably believes will involve a prospective material
adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or
results of operations of the Company and its
subsidiaries taken as a whole, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation,
with power and authority (corporate and other) to
own its properties and conduct its business as
described in the Prospectus;
(f) The Company has an authorized capitalization
as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company have been duly
and validly authorized and issued and are fully paid
and non-assessable;
(g) The Securities have been duly authorized,
and, when Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing
Agreement with respect to such Designated Securities,
such Designated Securities will have been duly
executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the
Company entitled to the benefits provided by the
Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the
Indenture has been duly authorized and duly qualified
under the Trust Indenture Act and, at the Time of
Delivery for such Designated Securities (as defined in
Section 4 hereof), the Indenture will constitute a
valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
the Indenture conforms, and the Designated Securities
will conform, to the descriptions thereof contained in
the Prospectus as amended or supplemented with respect
to such Designated Securities;
(h) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of
the Securities, the Indenture, this Agreement and any
Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company is a party or by which the Company is bound or
to which any of the property or assets of the Company
is subject or any statute or any order, rule or
regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its
properties (with such exceptions as would not have a
material adverse effect on the transactions
contemplated hereby or on the Company and its
subsidiaries taken as a whole), nor will such action
result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company;
and no consent, approval, authorization, order,
registration or qualification of or with any such court
or governmental agency or body is required for the
issue and sale of the Securities or the consummation by
the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or the Indenture,
except such as have been, or will have been prior to
the Time of Delivery, obtained under the Act and the
Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the
Securities by the Underwriters; and
(i) Other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending
to which the Company or any of its subsidiaries is a
party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material
adverse effect on the consolidated financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened
or contemplated by governmental authorities or
threatened by others.
3. Upon the execution of the Pricing Agreement
applicable to any Designated Securities and authorization by
the Representatives of the release of such Designated
Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions
set forth in the Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each
Underwriter pursuant to the Pricing Agreement relating
thereto, in the form specified in such Pricing Agreement,
and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-
eight hours' prior notice to the Company, shall be delivered
by or on behalf of the Company to the Representatives for
the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor
by wire transfer of Federal (same-day) funds to the account
specified by the Company to the Representatives at least
forty-eight hours in advance or at such other place and time
and date as the Representatives and the Company may agree
upon in writing, such time and date being herein called the
"Time of Delivery" for such Securities.
5. The Company agrees with each of the
Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended or
supplemented in relation to the applicable Designated
Securities in a form approved by the Representatives
and to file such Prospectus pursuant to Rule 424(b)
under the Act not later than the Commission's close of
business on the second business day following the
execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if
applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus
as amended or supplemented after the date of the
Pricing Agreement relating to such Securities and prior
to the Time of Delivery for such Securities which shall
be disapproved by the Representatives for such
Securities promptly after reasonable notice thereof; to
advise the Representatives promptly of any such
amendment or supplement after such Time of Delivery and
furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or
information statements required to be filed by the
Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection
with the offering or sale of such Securities, and
during such same period to advise the Representatives,
promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has
been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed
with the Commission, of the issuance by the Commission
of any stop order or of any order preventing or
suspending the use of any prospectus relating to the
Securities, of the suspension of the qualification of
such Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by
the Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any
such stop order or of any such order preventing or
suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal
of such order;
(b) Promptly from time to time to take such
action as the Representatives may reasonably request to
qualify such Securities for offering and sale under the
securities laws of such jurisdictions as the
Representatives may request and to comply with such
laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such
Securities, provided that in connection therewith the
Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of
the Prospectus as amended or supplemented in such
quantities as the Representatives may from time to time
reasonably request, and, if the delivery of a
prospectus is required at any time in connection with
the offering or sale of the Securities and if at such
time any event shall have occurred as a result of which
the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit
to state any material fact necessary in order to make
the statements therein, in the light of the circum
stances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to
amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Act, the
Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such
document and to prepare and furnish without charge to
each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its
securityholders as soon as practicable, but in any
event not later than eighteen months after the
effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of
the Act and the rules and regulations of the Commission
thereunder (including at the option of the Company Rule
158);
(e) During the period beginning from the date of
the Pricing Agreement for such Designated Securities
and continuing to and including the later of (i) the
termination of trading restrictions for such Designated
Securities, as notified to the Company by the
Representatives and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to
sell or otherwise dispose of any debt securities of the
Company which mature more than one year after such Time
of Delivery and which are substantially similar to such
Designated Securities, without the prior written
consent of the Representatives; and
(f) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the
Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b)
under the Act.
6. The Company covenants and agrees with the
several Underwriters that the Company will pay or cause to
be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in
connection with the registration of the Securities under the
Act and all other expenses in connection with the
preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any
Agreement among Underwriters, this Agreement, any Pricing
Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the
offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of
the Securities for offering and sale under state securities
laws as provided in Section 5(b) hereof, including the fees
and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with
the Blue Sky and legal investment surveys; (iv) any fees
charged by securities rating services for rating the
Securities; (v) any filing fees incident to any required
review by the National Association of Securities Dealers,
Inc. ("NASD") of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities; (vii) the fees
and expenses of any Trustee and any agent of any Trustee and
the fees and disbursements of counsel for any Trustee in
connection with any Indenture and the Securities; and
(viii) all other costs and expenses incident to the
performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is
understood, however, that, except as provided in this
Section, Section 8 and Section 11 hereof, the Underwriters
will pay all of their own costs and expenses, including the
fees of their counsel, transfer taxes on resale of any of
the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters of any
Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject (which
conditions may be waived by the Representatives in their
discretion), to the condition that all representations and
warranties of the Company in or incorporated by reference in
the Pricing Agreement relating to such Designated Securities
are, at and as of the date of the Pricing Agreement and the
Time of Delivery for such Designated Securities, true and
correct, the condition that the Company shall have performed
in all material respects all of its obligations hereunder
theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in
relation to the applicable Designated Securities shall
have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the
Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become
effective by 10:00 p.m., Washington, D.C. time on the
date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by
the Commission; and all requests for additional
information on the part of the Commission shall have
been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have
furnished to the Representatives such opinion or
opinions, dated the Time of Delivery for such
Designated Securities, with respect to the
incorporation of the Company, the validity of the
Indenture, the Designated Securities, the Registration
Statement, the Prospectus as amended or supplemented
and other related matters as the Representatives may
reasonably request, and such counsel shall have
received such papers and information as they may
reasonably request to enable them to pass upon such
matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives
their written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance
satisfactory to the Representatives, to the effect
that:
(i) The Company has been duly incorporated,
is validly existing as a corporation in good
standing under the laws of the state of Hawaii and
has all corporate power and corporate authority to
own or lease its properties and conduct its
business as described in the Prospectus as amended
or supplemented;
(ii) The Company has, as of the date of the
consolidated balance sheet of the Company included
in the most recent Quarterly Report on Form 10-Q,
or Annual Report on Form 10-K, as the case may be,
filed prior to the date of such opinion and
incorporated by reference in the Prospectus as
amended or supplemented, the authorized capital
stock as set forth in such balance sheet;
(iii) Except as disclosed in the Prospectus,
such counsel has not given substantive attention
on behalf of the Company, in the form of legal
consultation and where appropriate, legal
representation, in connection with any legal or
governmental proceedings pending to which the
Company or any of its subsidiaries is a party or
of which any property of the Company or any
subsidiary is the subject, which individually or
in the aggregate are material to the Company and
its subsidiaries, taken as a whole, or in
connection with any such proceedings threatened by
governmental authorities or others;
(iv) This Agreement and the Pricing Agreement
have been duly authorized, executed and delivered
by the Company, and the performance of this
Agreement and the Pricing Agreement and the
consummation of the transactions therein
contemplated will not result in a breach or
violation of the terms or provisions of or
constitute a default under any material indenture,
mortgage, deed of trust, note agreement, or other
agreement filed as an exhibit to the Company's
Annual Report on Form 10-K filed with the
Commission for the Company's most recent fiscal
year, as amended, to which the Company is a party
or by which the Company is bound, the Company's
Articles of Association or by-laws, or any order
known to such counsel of any court or any
governmental agency or body having jurisdiction
over the Company or any of its properties;
(v) The Designated Securities have been duly
authorized, and, when authenticated by the
Trustee, issued and delivered as contemplated by
this Agreement, the Pricing Agreement and the
Indenture, will have been duly executed,
authenticated, issued and delivered and will
constitute valid and legally binding obligations
of the Company entitled to the benefits provided
by the Indenture and the Indenture has been duly
authorized, executed and delivered by the Company,
and, when executed and delivered by the Trustee,
will constitute a valid and binding obligation of
the Company enforceable against the Company in
accordance with its terms except, in the case of
both the Designated Securities and the Indenture,
as the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar
laws relating to or affecting creditors' rights
generally (including, without limitation,
fraudulent conveyance laws), and by general
principles of equity including, without
limitation, concepts of materiality,
reasonableness, good faith and fair dealing and
the possible unavailability of specific
performance or injunctive relief, regardless of
whether considered in a proceeding in equity or at
law; and the Designated Securities and the
Indenture conform in all material respects to the
description thereof in the Prospectus, as amended
or supplemented; and the Indenture has been duly
qualified under the Trust Indenture Act;
(vi) No consent, approval, authorization or
order of any court or Federal, California or New
York governmental agency or body is required for
the consummation by the Company of the
transactions contemplated by this Agreement, the
Pricing Agreement, the Indenture, or the
Designated Securities, except such as may be
required by the NASD or under the Act or as may be
required under state or other securities or Blue
Sky Laws in connection with the purchase and sale
of the Designated Securities by the Underwriters;
(vii) The Registration Statement has become
effective under the Act, and to the best knowledge
of such counsel, no stop order suspending the
effectiveness thereof has been issued and no
proceedings for that purpose have been instituted
or are pending or contemplated under the Act; the
Registration Statement and the Prospectus
(excluding the documents incorporated by reference
therein (the "Incorporated Documents")), and each
amendment or supplement thereto, as of their
respective effective or issue dates and as of the
Time of Delivery each appeared on its face to
comply as to form in all material respects to the
requirements of the Act and the Trust Indenture
Act and the rules and regulations of the
Commission thereunder (except for the financial
statements included or incorporated by reference
therein, as to which no opinion need be
expressed); the Incorporated Documents, as of
their respective dates, each appeared on its face
to comply as to form in all material respects with
the requirements of the Exchange Act and the rules
and regulations thereunder (except for the
financial statements included or incorporated by
reference therein, as to which no opinion need be
expressed)
In addition to the foregoing, such counsel shall
state that while such counsel has not independently verified
the accuracy, completeness or fairness of the statements
contained or incorporated in the Registration Statement and
the Prospectus, and the limitations inherent in the
examination made by such counsel and the knowledge available
to such counsel are such that such counsel is unable to
assume, and does not assume, any responsibility for the
accuracy, completeness or fairness of the statements
contained or incorporated in the Registration Statement and
the Prospectus (except as otherwise specifically stated in
clause (v) above), on the basis of such counsel's review of
the Registration Statement and the Prospectus and such
counsel's participation in conferences in connection with
the preparation of the Registration Statement and the
Prospectus, and relying in such counsel's determination as
to materiality to an extent upon opinions of officers and
other representatives of the Company, such counsel does not
believe that the Registration Statement, as of its effective
date or the date of filing of the Company's most recent
Annual Report on Form 10-K, as the case may be, contained
any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary
in order to make the statements therein not misleading or
that, as of the date of the Prospectus and as of the Time of
Delivery, the Prospectus contained any untrue statement of a
material fact or omitted to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading,
except that such counsel need not express any opinion or
belief as to any document filed by the Company under the
Exchange Act, whether prior to or subsequent to the
effective date of the Registration Statement, except the
documents incorporated therein by reference read together
with the Registration Statement or the Prospectus and
considered as a whole and as specifically stated in
clause (vii) above, the Form T-1 filed by the Trustee in
connection with the Registration Statement, or the financial
statements or other financial data in the Registration
Statement or the Prospectus; and such counsel does not know
of any documents required to be filed as exhibits to the
Registration Statement, as amended or supplemented, which
are not filed as required.
(d) On the Time of Delivery for such Designated
Securities, the independent accountants of the Company
who have certified the financial statements of the
Company and its subsidiaries included or incorporated
by reference in the Registration Statement shall have
furnished to the Representatives a letter, dated the
date of delivery thereof, to the effect set forth in
Annex II hereto, in form and substance satisfactory to
the Representatives;
(e) (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus as amended
or supplemented any loss or interference with its
business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or
decree, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented, and
(ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented
there shall not have been any change in the capital
stock or long-term debt of the Company or any of its
subsidiaries or any change, or any development
involving a prospective change, in or affecting the
general affairs, management, financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries taken as a whole,
otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of
which, in any such case described in Clause (i) or
(ii), is in the reasonable judgment of the
Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities
on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(f) After the signing of the Pricing Agreement
relating to the Designated Securities (i) no
downgrading shall have occurred in the rating accorded
the Company's debt securities by any "nationally
recognized statistical rating organization," as that
term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under
surveillance or review, with possible negative
implications, its rating of any of the Company's debt
securities;
(g) After the signing of the Pricing Agreement
relating to the Designated Securities there shall not
have occurred any of the following: (i) a suspension
or material limitation in trading in the Company's
securities or in securities generally on the New York
Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either
Federal or New York State authorities; or (iii) the
outbreak or escalation of hostilities involving the
United States or the declaration by the United States,
on or after the date of such Pricing Agreement, of a
national emergency or war, if the effect of any such
event specified in this Clause (iii) in the reasonable
judgment of the Representatives makes it impracticable
or inadvisable to proceed with the public offering or
the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as
amended or supplemented; and
(h) The Company shall have furnished or caused to
be furnished to the Representatives at the Time of
Delivery for the Designated Securities a certificate or
certificates of officers of the Company satisfactory to
the Representatives as to the accuracy in all material
respects of the representations and warranties of the
Company herein at and as of such Time of Delivery, as
to the performance in all material respects by the
Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (e) (but
without reference to the judgment of the Representatives
of this Section and as to such other matters as
the Representatives may reasonably request.
8. (a) The Company will indemnify and hold
harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any
preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any
other prospectus relating to the Securities, or any
amendment 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 not misleading, and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company
shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the
Securities, or any such amendment or supplement in reliance
upon and in conformity with written information furnished to
the Company by any Underwriter of Designated Securities
through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such
Securities; and provided, further, that the Company shall
not be liable to any Underwriter under the indemnity
agreement in this subsection (a) with respect to any
Preliminary Prospectus (as amended or supplemented) to the
extent that any such loss, claim, damage or liability of
such Underwriter results from the fact that such Underwriter
sold Designated Securities to a person to whom there was not
sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then
amended or supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by
the Act if the Company has previously furnished copies
thereof to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue
statement or omission of a material fact contained in the
Preliminary Prospectus (as amended or supplemented) which
was corrected in the Prospectus (or the Prospectus as
amended or supplemented).
(b) Each Underwriter will indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under
the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to
the Securities, or any amendment 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
not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any
Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as
amended or supplemented and any other prospectus relating to
the Securities, or any such amendment or supplement in
reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will
reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall, if
a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any
indemnified party otherwise than under such subsection. In
case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it
shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party (which
consent shall not unreasonably be withheld), be counsel to
the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election
so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any
other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of,
or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or
potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does
not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any
indemnified party.
(d) If the indemnification provided for in this
Section 8 is unavailable to or insufficient to hold harmless
an indemnified party under subsection (a) or (b) above in
respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the
one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities
to which such loss, claim, damage or liability (or action in
respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party
failed to give the notice required under subsection (c)
above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company
on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such
Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct
or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the
equitable considerations referred to above in this
subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages
or liabilities (or actions in respect thereof) referred to
above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the applicable Designated
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations with respect to such Securities and not joint.
(e) The obligations of the Company under this
Section 8 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section 8 shall
be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of
the Company and to each person, if any, who controls the
Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Designated Securities which it
has agreed to purchase under the Pricing Agreement relating
to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or
other parties to purchase such Designated Securities on the
terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not
arrange for the purchase of such Designated Securities, then
the Company shall be entitled to a further period of thirty-
six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that,
within the respective prescribed period, the Representatives
notify the Company that they have so arranged for the
purchase of such Designated Securities, or the Company
notifies the Representatives that it has so arranged for the
purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of
Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement
or the Prospectus as amended or supplemented, or in any
other documents or arrangements, and the Company agrees to
file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the
opinion of the Representatives may thereby be made
necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with
like effect as if such person had originally been a party to
the Pricing Agreement with respect to such Designated
Securities.
(b) If, after giving effect to any arrangements
for the purchase of the Designated Securities of a
defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above,
the aggregate principal amount of such Designated Securities
which remains unpurchased does not exceed one-eleventh of
the aggregate principal amount of the Designated Securities,
then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to
purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based
on the principal amount of Designated Securities which such
Underwriter agreed to purchase under such Pricing Agreement)
of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements
for the purchase of the Designated Securities of a
defaulting Underwriter or Underwriters by the Representatives
and the Company as provided in subsection (a) above,
the aggregate principal amount of Designated Securities
which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of the Designated Securities, as
referred to in subsection (b) above, or if the Company shall
not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Designated
Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for
the expenses to be borne by the Company and the Underwriters
as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the
Company and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as
to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or
the Company, or any officer or director or controlling
person of the Company, and shall survive delivery of and
payment for the Securities.
11. If any Pricing Agreement shall be terminated
pursuant to Section 9 hereof, or by reason of failure of the
condition in Section 7(g) hereof, the Company shall not then
be under any liability to any Underwriter with respect to
the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but,
if for any other reason Designated Securities are not
delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in
writing by the Representatives, including fees and
disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale
and delivery of such Designated Securities, but the Company
shall then be under no further liability to any Underwriter
with respect to such Designated Securities except as
provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representa
tives of the Underwriters of Designated Securities shall act
on behalf of each of such Underwriters, and the parties
hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter
made or given by such Representatives jointly or by such of
the Representatives, if any, as may be designated for such
purpose in the Pricing Agreement.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters
shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Representatives as set
forth in the Pricing Agreement; and if to the Company shall
be delivered or sent by mail, telex or facsimile transmis
sion to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided,
however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be
supplied to the Company by the Representatives upon request.
Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of,
the Underwriters, the Company and, to the extent provided in
Section 8 and Section 10 hereof, the officers and directors
of the Company and each person who controls the Company or
any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of
any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing
Agreement. As used herein, "business day" shall mean any
day when the Commission's office in Washington, D.C. is open
for business.
15. This Agreement and each Pricing Agreement
shall be governed by and construed in accordance with the
laws of the State of New York.
16. This Agreement and each Pricing Agreement may
be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective
counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your
understanding, please sign and return to us several
counterparts hereof.
Very truly yours,
▇▇▇▇ FOOD COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇ III
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇ III
Title: Vice President and
Treasurer
Accepted as of the date
first written above
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
DEUTSCHE BANK SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
FIRST UNION CAPITAL MARKETS, a division of
Wheat First Securities, Inc.
By: CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Pricing Agreement
October 1, 1998
Chase Securities Inc.,
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Deutsche Bank Securities Inc.,
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC,
First Union Capital Markets, a division of
Wheat First Securities, Inc.,
c/o Chase Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Dear Sirs:
▇▇▇▇ Food Company, Inc., a Hawaii corporation (the
"Company"), proposes, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated
October 1, 1998 (the "Underwriting Agreement"), between the
Company on the one hand and Chase Securities Inc., ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co., Deutsche Bank Securities Inc., NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC and First Union Capital Markets, a
division of Wheat First Securities, Inc., on the other hand,
to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of
the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to
be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall
be deemed to have been made at and as of the date of this
Pricing Agreement, except that each representation and
warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the
Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as
of the date of this Pricing Agreement in relation to the
Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and
in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you.
Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of
the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the
Representatives referred to in such Section 12 are set forth
at the end of Schedule II hereto.
An amendment to the Registration Statement, or a
supplement to the Prospectus, as the case may be, relating
to the Designated Securities, in the form heretofore
delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein
and in the Underwriting Agreement incorporated herein by
reference, the Company agrees to issue and sell to each of
the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at
the time and place and at the purchase price to the
Underwriters set forth in Schedule II hereto, the principal
amount of Designated Securities set forth opposite the name
of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such
acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference,
shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your
acceptance of this letter on behalf of each of the
Underwriters is or will be pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon
request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
▇▇▇▇ FOOD COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇, III
Title: Vice President and
Treasurer
CHASE SECURITIES INC.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
DEUTSCHE BANK SECURITIES INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
FIRST UNION CAPITAL MARKETS, a division of
Wheat First Securities, Inc.
Accepted as of the date
first written above
By: CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
----------- ------------------
CHASE SECURITIES INC. $ 157,500,000
▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. 52,500,000
DEUTSCHE BANK SECURITIES INC. 37,500,000
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES 37,500,000
LLC
FIRST UNION CAPITAL MARKETS, 15,000,000
a division of Wheat First
Securities,Inc.
Total 300,000,000
SCHEDULE II
Title of Designated Securities:
6 3/8% Notes Due ▇▇▇▇
▇▇▇▇▇▇▇▇▇ principal amount:
$300,000,000
Price to Public:
99.720% of the principal amount of the Designated
Securities, plus accrued interest, if any, from
October 6, 1998.
Purchase Price by Underwriters:
99.095% of the principal amount of the Designated
Securities, plus accrued interest, if any, from
October 6, 1998.
Specified funds for payment of purchase price:
Immediately available funds.
Indenture:
Indenture dated as of July 15, 1993, between the
Company and The Chase Manhattan Bank and Trust Company,
N.A., successor to Chemical Trust Company of California,
as Trustee.
Maturity:
October 1, 2005
Interest Rate:
6 3/8%.
Interest Payment Dates:
April 1 and October 1.
Redemption Provisions:
As described in the Prospectus Supplement.
Sinking Fund Provisions:
No sinking fund provisions.
Defeasance provisions:
As described in the Prospectus.
Time of Delivery:
7:00 A.M., Los Angeles time, October 6, 1998.
Closing Location:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Name and address of Representatives authorized to act for the
others:
Chase Securities Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement,
the accountants shall furnish letters to the Underwriters to
the effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements
and any supplementary financial information and
schedules audited (and, if applicable, prospective
financial statements and/or pro forma financial
information examined) by them and included or
incorporated by reference in the Registration Statement
or the Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the Act or the Exchange Act, as applicable, and the
related published rules and regulations thereunder;
and, if applicable, they have made a review in
accordance with standards established by the American
Institute of Certified Public Accountants of the
consolidated interim financial statements, selected
financial data, pro forma financial information,
prospective financial statements and/or condensed
financial statements derived from audited financial
statements of the Company for the periods specified in
such letter, as indicated in their reports thereon,
copies of which have been furnished to the
representatives of the Underwriters (the
"Representatives");
(iii) The unaudited selected financial information
with respect to the consolidated results of operations
and financial position of the Company for the five most
recent fiscal years included in the Prospectus and
included or incorporated by reference in Item 6 of the
Company's Annual Report on Form 10-K for the most
recent fiscal year agrees with the corresponding
amounts (after restatement where applicable) in the
audited consolidated financial statements for five such
fiscal years which were included or incorporated by
reference in the Company's Annual Reports on Form 10-K
for such fiscal years;
(iv) On the basis of limited procedures, not
constituting an audit in accordance with generally
accepted auditing standards, consisting of a reading of
the unaudited financial statements and other
information referred to below, a reading of the latest
available interim financial statements of the Company
and its subsidiaries, inspection of the minute books of
the Company and its subsidiaries since the date of the
latest audited financial statements included or
incorporated by reference in the Prospectus, inquiries
of officials of the Company and its subsidiaries
responsible for financial and accounting matters and
such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that
caused them to believe that:
(A) the unaudited condensed consolidated
statements of income, consolidated balance sheets
and consolidated statements of cash flows included
or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Exchange Act as it
applies to Form 10-Q and the related published
rules and regulations thereunder or are not in
conformity with generally accepted accounting
principles applied on a basis substantially
consistent with the basis for the audited
consolidated statements of income, consolidated
balance sheets and consolidated statements of cash
flows included or incorporated by reference in the
Company's Annual Report on Form 10-K for the most
recent fiscal year;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding
items in the unaudited consolidated financial
statements from which such data and items were
derived, and any such unaudited data and items
were not determined on a basis substantially
consistent with the basis for the corresponding
amounts in the audited consolidated financial
statements included or incorporated by reference
in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which
were not included in the Prospectus but from which
were derived the unaudited condensed financial
statements referred to in Clause (A) and any
unaudited income statement data and balance sheet
items included in the Prospectus and referred to
in Clause (B) were not determined on a basis
substantially consistent with the basis for the
audited financial statements included or
incorporated by reference in the Company's Annual
Report on Form 10-K for the most recent fiscal
year;
(D) any unaudited pro forma consolidated
condensed financial statements included or
incorporated by reference in the Prospectus do not
comply as to form in all material respects with
the applicable accounting requirements of the Act
and the published rules and regulations thereunder
or the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than
five days prior to the date of such letter, there
have been any changes in the consolidated capital
stock (other than issuances of capital stock upon
exercise of options and stock appreciation rights,
upon earn-outs of performance shares and upon
conversions of convertible securities, in each
case which were outstanding on the date of the
latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in
the consolidated long-term debt of the Company and
its subsidiaries, or any decreases in consolidated
net current assets or net assets or other items
specified by the Representatives, or any increases
in any items specified by the Representatives, in
each case as compared with amounts shown in the
latest balance sheet included or incorporated by
reference in the Prospectus, except in each case
for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus to the
specified date referred to in Clause (E) there
were any decreases in consolidated net revenues or
operating profit or the total or per share amounts
of consolidated net income or other items
specified by the Representatives, or any increases
in any items specified by the Representatives, in
each case as compared with the comparable period
of the preceding year and with any other period of
corresponding length specified by the
Representatives, except in each case for increases
or decreases which the Prospectus discloses have
occurred or may occur or which are described in
such letter; and
(v) In addition to the audit referred to in their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred
to in paragraphs (iii) and (iv) above, they have
carried out certain specified procedures, not
constituting an audit in accordance with generally
accepted auditing standards, with respect to certain
amounts, percentages and financial information
specified by the Representatives which are derived from
the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding
documents incorporated by reference), or in Part II of,
or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus
specified by the Representatives, and have compared
certain of such amounts, percentages and financial
information with the accounting records of the Company
and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall
be deemed to refer to the Prospectus (including the
documents incorporated by reference therein) as defined in
the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes
of such letter and to the Prospectus as amended or
supplemented (including the documents incorporated by
reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time
of Delivery for such Designated Securities.