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EXHIBIT 1.1
[ - ] SHARES
KEEBLER FOODS COMPANY
COMMON STOCK ($0.01 PAR VALUE)
FORM OF UNDERWRITING AGREEMENT
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[ - ]
CREDIT SUISSE FIRST BOSTON CORPORATION
[ - ]
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. The stockholders listed in Schedule B hereto (the
"Selling Stockholders") propose severally to sell (the "U.S. Offering") to the
several underwriters named in Schedule A hereto (the "Underwriters") an
aggregate of [ - ] outstanding shares (the "U.S. Firm Securities") of the Common
Stock, $0.01 par value per share (the "Securities") of Keebler Foods Company, a
Delaware corporation (the "Company"), and also propose to sell to the
Underwriters and the Managers (as defined) an option, exercisable by Credit
Suisse First Boston Corporation ("CSFBC"), for an aggregate of not more than
[ - ] additional outstanding shares (the "Optional Securities") of the Company's
Securities as set forth below. The U.S. Firm Securities and the Optional
Securities that may be sold to the Underwriters are herein collectively called
the "U.S. Securities".
It is understood that the Company and the Selling Stockholders are
concurrently entering into a Subscription Agreement, dated the date hereof (the
"Subscription Agreement"), with Credit Suisse First Boston (Europe) Limited
("CSFBL") and the other managers named therein (together with CSFBL, the
"Managers"), relating to the concurrent offering and sale (the "International
Offering") by the Selling Stockholders of an aggregate of [ - ] Securities (the
"International Firm Securities", which together with the Optional Securities
that may be sold to the Managers are hereinafter called the "International
Securities") outside the United States and Canada. The U.S. Firm Securities and
the International Firm Securities are collectively referred to as the "Firm
Securities". The U.S. Securities and the International Securities are
collectively
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referred to as the "Offered Securities". To provide for the coordination of
their activities, the Underwriters and the Managers have entered into an
Agreement between U.S. Underwriters and Managers which permits them, among other
things, to sell the Offered Securities to each other for purposes of resale.
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement on Form S-3 (No. 333-[ - ])
relating to the Offered Securities, including a form of prospectus, has
been filed with the Securities and Exchange Commission (the
"Commission"). The registration statement contains two prospectuses to
be used in connection with the offering and sale of the Offered
Securities: the U.S. prospectus, to be used in connection with the U.S.
Offering, and the international prospectus, to be used in connection
with the International Offering. The international prospectus is
identical to the U.S. prospectus except for the front cover. The
registration statement either (A) has been declared effective under the
Securities Act of 1933 (the "Act"), and is not proposed to be amended
or (B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial registration
statement") has been declared effective, either (A) an additional
registration statement (the "additional registration statement")
relating to the Offered Securities may have been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (B) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or, if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("Rule 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement means (A) if
the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (B) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the
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Representatives that it proposes to file one, "Effective
Time" with respect to such additional registration statement means the
date and time as of which such registration statement is filed and
becomes effective pursuant to Rule 462(b). "Effective Date" with
respect to the initial registration statement or the additional
registration statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including (a) all information contained in the
additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions
of the Form on which it is filed, (b) all information (if any) deemed
to be a part of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act and (c)
all other material incorporated by reference therein, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including (a)
the contents of the initial registration statement incorporated by
reference therein, (b) all information (if any) deemed to be a part of
the additional registration statement as of its Effective Time pursuant
to Rule 430A(b) and (c) all other material incorporated by reference
therein, is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of U.S. prospectus, together with the form of
international prospectus, relating to the Offered Securities, each of
which shall be deemed to include all material incorporated by reference
therein and as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no
such filing is required) as included in a Registration Statement, are
hereinafter referred to as the "Prospectus". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and none of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is
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subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
none of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading,
and no Additional Registration Statement has been or will be filed.
The two preceding sentences do not apply to statements in or omissions
from a Registration Statement or the Prospectus based upon written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(c) hereof.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have,
individually or in the aggregate, a material adverse effect on the
condition (financial or other), results of operation, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated
and is a validly existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with appropriate power and
authority to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to so qualify would not have, individually or in the aggregate,
a Material Adverse Effect; all of the issued and outstanding capital
stock of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and, except as
disclosed in the Prospectus, the capital stock of each subsidiary owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(v) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and, except as disclosed in the
Prospectus, the stockholders of the Company have no preemptive rights
with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment with respect to the sale of the Offered Securities.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under
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the Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such
securities in the securities registered pursuant to a Registration
Statement or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(viii) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement or the Subscription
Agreement in connection with the sale of the Offered Securities, except
such as have been obtained and made under the Act and the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act") and such as may be required under state securities laws.
(ix) The execution, delivery and performance of this Agreement
and the Subscription Agreement, and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of (A) any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or (B) any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or (C) the charter or
by-laws of the Company or any such subsidiary, except, in the cases of
(A) and (B), where such breach, violation or default, individually or
in the aggregate, would not have a Material Adverse Effect.
(x) Each of this Agreement and the Subscription Agreement has
been duly authorized, validly executed and delivered by the Company.
(xi) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, in each case free
from liens, encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the Company
and its subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would,
individually or in the aggregate, have a Material Adverse Effect.
(xii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could be expected to
have a Material Adverse Effect.
(xiii) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that could be expected to have a Material Adverse Effect.
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(xiv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could be expected to
have a Material Adverse Effect.
(xv) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim, individually or in the aggregate,
could be expected to have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a
claim.
(xvi) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company,
any of its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries,
individually or in the aggregate, could be expected to have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Offered
Securities; and, to the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(xvii) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis; the schedules included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xviii) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or
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results of operations of the Company and its subsidiaries
individually, or taken as a whole, and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(xix) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, severally and not jointly,
represents and warrants to, and agrees with, the several Underwriters
that:
(i) Such Selling Stockholder is duly incorporated (if
such Selling Stockholder is a corporation) and validly
existing and, to the extent such concept exists in the
relevant jurisdiction, in good standing under the laws of the
jurisdiction of its incorporation.
(ii) Each of this Agreement and the Subscription
Agreement has been duly authorized, executed and, to the
extent such concept exists in the relevant jurisdiction,
delivered by such Selling Stockholder.
(iii) The execution and delivery by such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Subscription Agreement, will not contravene any provision of
applicable law, or the organizational documents of such
Selling Stockholder (if such Selling Stockholder is a
corporation), or any agreement or other instrument binding
upon such Selling Stockholder or any of its assets or any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Stockholder or any
of its assets, except where such contravention would not have,
individually or in the aggregate, a Material Adverse Effect,
and no consent, approval, authorization, or order of, or
qualification or filing with, any governmental agency or body
or any court is required to be obtained or made by such
Selling Stockholder for the performance by such Selling
Stockholder of its obligations under this Agreement or the
Subscription Agreement, except (A) such as have been obtained
or made, (B) such as may be required by the securities or Blue
Sky laws of the various states of the United States of America
in connection with the offer and sale of the Offered
Securities in the United States of America and (C) such as may
be required by the securities laws of any jurisdiction outside
the United States of America.
(iv) Such Selling Stockholder has, and on each
Closing Date hereinafter mentioned will have, valid
unencumbered title to the Offered Securities to be sold by
such Selling Stockholder on such date and the legal right and
power, and all authorization and approval required by law, to
enter into this Agreement and the Subscription Agreement and
to sell, assign, transfer and deliver the Offered Securities
to be sold by such Selling Stockholder.
(v) Upon delivery of the Offered Securities to be
sold by such Selling Stockholder pursuant to this Agreement
and the Subscription Agreement and payment therefor as
contemplated by this Agreement and
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the Subscription Agreement, marketable title to the Offered
Securities will pass to the Underwriters free and clear of
any security interests, claims, liens, equities and other
encumbrances, other than security interests, liens, equities
or other encumbrances arising solely from the actions of the
Underwriters.
(vi) There are no material agreements or arrangements
relating to the Company or its subsidiaries to which such
Selling Stockholder, or to the best of such Selling
Stockholder's knowledge, to which any direct or indirect
stockholder of such Selling Stockholder is a party, which are
required to be described in the Registration Statements or the
Prospectus or to be filed as exhibits thereto that are not so
described or filed.
(vii) (a) Each Registration Statement, when such
Registration Statement became effective, did not contain and
each such Registration Statement, as amended or supplemented,
if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, (b) each Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder
and (c) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading,
except that the foregoing representations and warranties apply
only to the extent that any statements or omissions in each
Registration Statement or the Prospectus are based upon
information relating to such Selling Stockholder and any
direct or indirect stockholder of such Selling Stockholder
furnished to the Company in writing by such Selling
Stockholder expressly for use therein.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from each Selling Stockholder, at
a purchase price of $[ - ] per share, that number of U.S. Firm Securities
(rounded up or down, as determined by CSFBC in its discretion, in order to avoid
fractions) obtained by multiplying the number of U.S. Firm Securities set forth
opposite the name of such Selling Stockholder in Schedule B hereto by a fraction
the numerator of which is the number of U. S. Firm Securities set forth opposite
the name of such Underwriter in Schedule A hereto and the denominator of which
is the total number of U.S. Firm Securities.
Each of the Selling Stockholders will deliver the U.S. Firm Securities
to the Representatives for the accounts of the Underwriters, against payment of
the purchase price in immediately available funds by official bank check or
checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of each of the Selling Stockholders at the office of Cravath, Swaine &
▇▇▇▇▇ ("Underwriters' Counsel"), at 10:00 a.m., New York time, on [ - ], or at
such other time not later than seven full business days thereafter as CSFBC and
the Selling Stockholders determine, such time being herein referred to as the
"First Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), the First Closing
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Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the U.S. Offering and the International
Offering. The certificates for the U.S. Firm Securities so to be delivered will
be in definitive form, in such denominations and registered in such names as
CSFBC requests and will be made available for checking and packaging at the
above office of Underwriters' Counsel at least 24 hours prior to the First
Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Underwriters may purchase all or less than all
of the Optional Securities at the purchase price per Security to be paid for the
U.S. Firm Securities. Each of the Selling Stockholders agrees, severally and not
jointly, to sell to the Underwriters the respective numbers of Optional
Securities obtained by multiplying the number of Optional Securities specified
in such notice by a fraction the numerator of which is the number of shares set
forth opposite the names of such Selling Stockholders in Schedule B hereto under
the caption "Number of Optional Securities to be Sold" and the denominator of
which is the total number of Optional Securities (subject to adjustment by CSFBC
to eliminate fractions). Such Optional Securities shall be purchased from each
Selling Stockholder for the account of each Underwriter and Manager in the same
proportion as the number of U.S. Firm Securities set forth opposite such
Underwriter's name bears to the total number of U.S. Firm Securities and the
number of International Firm Securities set forth opposite such Manager's name
bears to the total number of International Firm Securities (subject to
adjustment by CSFBC to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments made in connection
with the sale of the Firm Securities. No Optional Securities shall be sold or
delivered unless the U.S. Firm Securities and the International Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. Each of the Selling
Stockholders will deliver the Optional Securities being purchased on each
Optional Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price in immediately available
funds by official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of each of the Selling Shareholders, at
the above office of Underwriters' Counsel. The certificates for the Optional
Securities being purchased on each Optional Closing Date will be in definitive
form, in such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Underwriters' Counsel at a
reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the U.S. Securities for sale to the public as set
forth in the Prospectus.
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5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of
such execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 p.m., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent (which will not be unreasonably withheld); and
the Company will also advise CSFBC promptly of the effectiveness of
each Registration Statement (if its Effective Time is subsequent to the
execution and delivery of this Agreement) and of any amendment or
supplementation of a Registration Statement or the Prospectus and of
the institution by the Commission of any stop order proceedings in
respect of a Registration Statement and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as
possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders
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an earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"Availability Date" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "Availability Date" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (five of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so
long as a prospectus relating to the Offered Securities is required to
be delivered under the Act in connection with sales by any Underwriter
or dealer, the U.S. Prospectus and all amendments and supplements to
such documents, in each case in such quantities as CSFBC reasonably
requests. The Prospectus shall be so furnished on or prior to 3:00
p.m., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBC designates and will continue such qualifications in effect so
long as required for the distribution; provided, that in no event shall
the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would
subject it to general service of process in any jurisdiction where it
is not now so subject.
(g) During the period of 5 years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBC may reasonably request.
(h) For a period of 90 days after the date of the initial
public offering of the Offered Securities (the "Lockup Period"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file (other than on a Form S-8)
with the Commission a registration statement under the Act relating to,
any additional shares of its Securities or securities convertible into
or exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC,
except issuances of Securities pursuant to the conversion or exchange
of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on the
date hereof, issuances of Securities pursuant to the exercise of such
options or issuances of Securities pursuant to the Company's dividend
reinvestment plan. Notwithstanding the provisions of this subsection
(h), the Company may file, but
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may not offer, sell or otherwise dispose of any securities during the
Lockup Period pursuant to, a registration statement in connection with
(A) the exercise by Artal Luxembourg S.A ("Artal") of any remaining
demand registration rights under the Artal Stock Purchase Agreement
(the "Artal Agreement"), dated as of January 28, 1998, among Artal,
Flowers Industries, Inc. ("Flowers") and the Company or (B) the
exercise of any related incidental registration rights by Claremont,
Limited ("Claremont") under the Claremont Stock Purchase Agreement (the
"Claremont Agreement"), dated as of January 28, 1998, among Claremont,
Artal, Flowers and the Company.
The Company agrees with the several Underwriters that the Company will
pay all expenses incident to the performance of its obligations and the
obligations of the Selling Stockholders under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel) incurred
in connection with qualification of the Offered Securities for sale under the
laws of such jurisdictions as CSFBC designates and the printing of memoranda
relating thereto, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with attending or
hosting meetings with prospective purchasers of the Offered Securities, for any
transfer taxes on the sale of the Offered Securities to the Underwriters and for
expenses incurred in printing and distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
Each Selling Stockholder agrees to deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date, a properly
completed and executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department regulations in
lieu thereof).
Each Selling Stockholder agrees, during the Lockup Period, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or securities
convertible into or exchangeable or exercisable for any shares of Securities, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, without the prior written consent of CSFBC. Notwithstanding the
provisions of this paragraph, the Company may file, but may not offer, sell or
otherwise dispose of any securities during the Lockup Period pursuant to, a
registration statement in connection with (A) the exercise by Artal of any
remaining demand registration rights under the Artal Agreement or (B) the
exercise of any related incidental registration rights by Claremont under the
Claremont Agreement.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the U.S. Firm Securities on
the First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders herein, to
the accuracy of the statements of Company officers made pursuant to the
provisions hereof, to the performance by the Company and the Selling
Stockholders of their obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
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registration statement to be filed shortly prior to such Effective
Time), of PricewaterhouseCoopers LLP confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited financial statements included in
the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) the unaudited consolidated net sales,
net operating income and net income and net income
per share amounts for the 40-week periods ended
October 4, 1997 and October 10, 1998, included in the
Prospectus do not agree with the amounts set forth in
the unaudited consolidated financial statements for
those same periods or were not determined on a basis
substantially consistent with that of the
corresponding amounts in the audited statements of
income;
(C) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net assets, as compared with amounts
shown on the latest balance sheet included in the
Prospectus;
(D) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding
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period of the previous year and with the period of
corresponding length ended the date of the latest
income statement included in the Prospectus, in
consolidated net sales, net operating income in the
total or per share amounts of consolidated, net
income; or
(E) the unaudited pro forma consolidated
financial statements included in the Prospectus do
not comply as to form in all material respects with
the applicable accounting requirements of the Act and
the related 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;
except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "Registration Statements" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "Registration Statements"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "Prospectus" shall mean the prospectus
included in the Registration Statements.
(b) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of PricewaterhouseCoopers LLP with respect to the financial
statements and other financial information of President International,
Inc. included in the Registration Statements, in a form substantially
similar to that set forth in paragraph (a) above.
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(c) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 p.m., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 p.m., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company
or the Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company or its subsidiaries which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities
generally on the NYSE, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the
Company on any exchange or in the over-the-counter market; (iv) any
banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or inadvisable
to proceed with completion of the public offering or the sale of and
payment for the Offered Securities.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Winston & ▇▇▇▇▇▇, counsel for the Company, in the
form attached hereto as Annex I.
(f) The Representatives shall have received the opinion, dated
such Closing Date of each of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel
for Artal, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, Luxembourg counsel for Artal, Battle
▇▇▇▇▇▇, U.S. counsel
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for Claremont, and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Bermuda counsel for
Claremont, in the forms attached hereto as Annexes II, III, IV and V,
respectively.
(g) The Representatives shall have received from Cravath,
Swaine & ▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to such matters as the
Representatives may require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(h) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement and the Subscription Agreement are true
and correct; the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date; no stop order suspending the effectiveness
of any Registration Statement has been issued and no proceedings for
that purpose have been instituted or are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee
in accordance with Rule 111(a) or (b) under the Act, prior to the time
the Prospectus was printed and distributed to any underwriter; and,
subsequent to the dates of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change,
in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
except as set forth in or contemplated by the Prospectus or as
described in such certificate.
(i) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes of
this subsection.
(j) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (b) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes of
this subsection.
(k) Flowers shall have furnished to the Representatives a
letter substantially in the form of Exhibit A hereto and addressed to
the Representatives relating to sales of shares of Securities or any
securities convertible into or exercisable or exchangeable for such
Securities, and each such letter shall be in full force and effect on
the Closing Date.
(l) Each executive officer and director of the Company shall
have furnished to the Representatives a letter substantially in the
form of Exhibit B hereto and addressed to the Representatives relating
to sales of shares of Securities or any securities convertible into or
exercisable or exchangeable for
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such Securities, and each such letter shall be in full force and
effect on the Closing Date.
(m) Each Selling Stockholder shall deliver to the
Representatives a properly completed and executed United States
Treasury Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
Each of the Selling Stockholders and the Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents as the Representatives reasonably request. CSFBC may in
its sole discretion waive on behalf of the Underwriters compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter and each Selling Stockholder against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
Selling Stockholder, as the case may be, may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter and each Selling Stockholder for any legal or other expenses
reasonably incurred by such Underwriter or Selling Stockholder, as the case may
be, in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company (i) by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in
subsection (c) below or (ii) by any Selling Stockholder specifically for use
therein.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each 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 any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information about such Selling Stockholder
(or any direct or indirect stockholders of such Selling Stockholder) furnished
to the Company by such Selling Stockholder specifically for use therein, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
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provided, however, that such Selling Stockholder will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the
Company by an Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or arise out of or
are based upon the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fifth paragraph under the caption
"Underwriting" and the over-allotments and stabilizing language appearing in the
thirteenth paragraph under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action.
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(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Selling Stockholders bear to the
total underwriting discounts and commissions received by the 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, the Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (e) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such 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 Underwriters' obligations
in this subsection (e) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(f) The obligations of the Company and each Selling Stockholder under
this Section shall be in addition to any liability which the Company and such
Selling Stockholder may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
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
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
The maximum liability of each Selling Stockholder to indemnify or
contribute payments pursuant to this Section 7 shall not exceed the aggregate
net proceeds (after deducting the Underwriters' discount) of the Offered
Securities (including the sale of shares on exercise of the over-allotment
option, if any) to such Selling Stockholder.
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8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First Closing Date or any Optional Closing Date and the aggregate number of
shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date, CSFBC may make arrangements satisfactory to the Selling
Stockholders for the purchase of such Offered Securities by other persons,
including any of the Underwriters, but if no such arrangements are made by such
Closing Date, the non-defaulting Underwriters shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so default and the
aggregate number of shares of Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to CSFBC and the Selling Stockholders for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, this Agreement will terminate without liability on the
part of any non-defaulting Underwriter, the Company or the Selling Stockholders,
except as provided in Section 9 (provided that if such default occurs with
respect to Optional Securities after the First Closing Date, this Agreement will
not terminate as to the U.S. Firm Securities or any Optional Securities
purchased prior to such termination). As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company, the Selling Stockholders and the
Underwriters pursuant to Section 7 shall remain in effect, and if any Offered
Securities have been purchased hereunder the representations and warranties in
Section 2 and all obligations under Section 5 shall also remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in clause (iii),
(iv) or (v) of Section 6(d), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Investment Banking
Department-Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, or, if sent to Artal
Luxembourg S.A., will be mailed, delivered or telegraphed
20
21
and confirmed to it at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
Attention: Managing Director, or, if sent to Claremont Enterprises, Ltd, will
be mailed, delivered or telegraphed and confirmed to it at c/o G.F. Industries,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives,
heirs and successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Company and the Selling Stockholders hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof,
21
22
whereupon it will become a binding agreement among the Selling Stockholders, the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
KEEBLER FOODS COMPANY,
by
---------------------------------
Name:
Title:
ARTAL LUXEMBOURG S.A.,
by
---------------------------------
Name:
Title:
CLAREMONT ENTERPRISES, LTD
by
---------------------------------
Name:
Title:
22
23
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
[ - ]
As Representatives of the several U.S. Underwriters
CREDIT SUISSE FIRST BOSTON CORPORATION
by
-------------------------------
Name:
Title:
23
24
SCHEDULE A
Number of U.S.
Firm Securities
Underwriter to be Purchased
----------- ---------------
Credit Suisse First Boston Corporation
------------
Total ==============
25
SCHEDULE B
Number of
Number of U.S. Optional
Firm Securities Securities
Selling Stockholder to be Sold to be Sold
------------------- ---------- ----------
Artal Luxembourg S.A.
----------- ----------
Claremont Enterprises, Ltd
----------- ----------
Total
26
Annex I
[Form of Opinion of Winston & ▇▇▇▇▇▇]
27
Annex II
[Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇]
28
Annex III
[Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇]
29
Annex IV
[Form of Opinion of Battle ▇▇▇▇▇▇]
30
Annex V
[Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇]
31
Exhibit A
[ ]
Keebler Foods Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
[ - ]
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston (Europe) Limited
[ - ]
c/o Credit Suisse First Boston Limited
One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
As an inducement to the Underwriters and Managers to execute
the Underwriting and/or Subscription Agreement, pursuant to which a secondary
offering will be made of the Common Stock, $0.01 par value per share (the
"Securities") of Keebler Foods Company (the "Company"), the undersigned hereby
agrees that, for a period of 90 days after the public offering (the
"Commencement Date") of the Securities pursuant to the Underwriting and/or
Subscription Agreement to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposal without
the prior written consent of Credit Suisse First Boston Corporation.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
This Agreement shall be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned. This Agreement shall lapse and become null and void if the
Commencement Date shall not have occurred on or before the date that is 90 days
after the date of this Agreement.
Very truly yours,
________________________________
32
Exhibit B
[ ]
Keebler Foods Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston Corporation
[ - ]
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Credit Suisse First Boston (Europe) Limited
[ - ]
c/o Credit Suisse First Boston Limited
One ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Dear Sirs:
As an inducement to the Underwriters and Managers to execute
the Underwriting and/or Subscription Agreement, pursuant to which a secondary
offering will be made of the Common Stock, $0.01 par value per share (the
"Securities") of Keebler Foods Company (the "Company"), the undersigned hereby
agrees that, for a period of 60 days after the public offering (the
"Commencement Date") of the Securities pursuant to the Underwriting and/or
Subscription Agreement to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, or publicly
disclose the intention to make any such offer, sale, pledge or disposal without
the prior written consent of Credit Suisse First Boston Corporation.
Notwithstanding the provisions of this paragraph (i) the undersigned shall be
entitled to exercise its rights to require the Company to repurchase a certain
amount of its shares of Common Stock of the Company in accordance with the
Management Stockholders Agreement dated May 10, 1996, as amended and
supplemented on February 3, 1998, and (ii) the undersigned shall be entitled to
enter into certain tax free share exchanges as agreed upon between the
undersigned and Credit Suisse First Boston Corporation.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
This Agreement shall be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned. This Agreement shall lapse and become null and void if the
Commencement Date shall not have occurred on or before the date that is 60 days
after the date of this Agreement.
Very truly yours,
________________________________