Dole Food Company, Inc. Common Stock Underwriting Agreement
Exhibit 1.1
▇▇▇▇ Food Company, Inc.
Common Stock
, 2009
▇▇▇▇▇▇▇, Sachs & Co.,
Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇ Fargo Securities, LLC,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇ Fargo Securities, LLC,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Ladies and Gentlemen:
▇▇▇▇ Food Company, Inc., a Delaware corporation (the “Company”), as the surviving corporation
in the merger of DHM Holding Company, Inc. with and into ▇▇▇▇ Food Company, Inc. immediately prior
to the First Time of Delivery, proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of
[ ] shares (the “Firm Shares”) and, at the election of the Underwriters pursuant to Section 2
hereof, up to [ ] additional shares (the “Optional Shares”) of common stock, par value $0.001 per
share, of the Company (“Stock”). The Firm Shares and the Optional Shares are herein collectively
called the “Shares”.
1. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-161345) (the “Initial Registration
Statement”) in respect of the Shares has been filed with the Securities and Exchange Commission
(the “Commission”); the Initial Registration Statement, including any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto, delivered
to you for each of the other Underwriters, has 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 has heretofore been filed with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, including 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 rules and regulations of the Commission under the Act is hereinafter called a
“Preliminary Prospectus”; the various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission pursuant to Rule 424(b) under
the Act in accordance with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Registration Statement at the time it was declared effective, 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 collectively called the “Registration Statement”; the Preliminary Prospectus relating
to the Shares that was included in the Registration Statement immediately prior to the Applicable
Time (as defined in Section 1(c) hereof) is hereinafter called the “Pricing Prospectus”; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is hereinafter called
the “Prospectus”; and any “issuer free writing prospectus” as defined in Rule 433 under the Act
relating to the Shares is hereinafter called an “Issuer Free Writing Prospectus”);
(b) No order preventing or suspending the use of any Preliminary Prospectus or any Issuer Free
Writing Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time
of filing thereof, conformed in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did 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, in the light of the circumstances under which they were made, 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 through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(c) For the purposes of this Agreement, the “Applicable Time” is ___:___m (Eastern time) on
the date of this Agreement; the Pricing Prospectus as of the Applicable Time, did not include any
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 circumstances under which they were made, not
misleading; and each Issuer Free Writing Prospectus listed on Schedule II(a) hereto does not
conflict with the information contained in the Registration Statement, the Pricing Prospectus or
the Prospectus and each such Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Prospectus as of the Applicable Time, did not include any 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 circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to statements or omissions made in an Issuer
Free Writing Prospectus in reliance upon and in conformity
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with information furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. expressly for use therein;
(d) The Registration Statement conforms, and the Prospectus and any further amendments or
supplements to the Registration Statement and the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to each part of the Registration Statement
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
through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein;
(e) Neither the Company nor any of its subsidiaries listed on Annex III hereto (each, a
“Significant Subsidiary” and collectively, the “Significant Subsidiaries”) has sustained since the
date of the latest audited financial statements included in the Pricing 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 Pricing Prospectus; and, since the
respective dates as of which information is given in the Registration Statement and the Pricing
Prospectus, there has not been any change in the capital stock or long-term debt of the Company or
any of its Significant Subsidiaries or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the general affairs, management, financial
position, stockholders’ equity or results of operations of the Company and its subsidiaries, taken
as a whole, otherwise than as set forth or contemplated in the Pricing Prospectus;
(f) The Company and its Significant Subsidiaries have good and marketable title in fee simple
to all real property and good and marketable title to all personal property owned by them, in each
case free and clear of all liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of such property and do not
interfere materially with the use made and proposed to be made of such property by the Company and
its Significant Subsidiaries; and any real property and buildings held under lease by the Company
and its Significant Subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere materially with the use made and
proposed to be made of such property and buildings by the Company and its Significant Subsidiaries;
(g) 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 power and authority (corporate and other) to
own its properties and conduct its business as described in the Pricing Prospectus, and has been
duly qualified as a foreign corporation for the
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transaction of business and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to require such qualification, or
is subject to no material liability or disability by reason of the failure to be so qualified in
any such jurisdiction; and each Significant Subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own its properties and conduct its
business as described in the Pricing Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by reason of the failure to be
so qualified in any such jurisdiction;
(h) The Company has an authorized capitalization as set forth in the Pricing 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 and conform to the description of the Stock contained
in the Pricing Prospectus and Prospectus; and all of the issued shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors’ qualifying shares and except as otherwise set
forth in the Pricing Prospectus) are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(i) The unissued Shares to be issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and non-assessable and will conform
to the description of the Stock contained in the Prospectus;
(j) The issue and sale of the Shares to be sold by the Company and the compliance by the
Company with this Agreement and the consummation of the transactions herein 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 or any of its Significant Subsidiaries is a party or
by which the Company or any of its Significant Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Significant Subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of Incorporation or By-laws of
the Company 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 Significant Subsidiaries or any of their
properties; 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 Shares
or the consummation by the Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares and such consents, approvals, authorizations,
registrations or qualifications as may
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be required under state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(k) Neither the Company nor any of its Significant Subsidiaries is in violation of its
Certificate of Incorporation or By-laws or similar organizational documents or in default in the
performance or observance of any material obligation, agreement, covenant or condition contained in
any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound;
(l) The statements set forth in the Pricing Prospectus and Prospectus under the caption
“Description of Capital Stock”, insofar as they purport to constitute a summary of the terms of the
Stock, under the caption “Material United States Federal Income Tax Considerations for Non-United
States Holders”, under the caption “Shares Eligible for Future Sale” and under the caption
“Underwriting”, insofar as they purport to describe the provisions of the laws and documents
referred to therein, are accurate, complete and fair;
(m) Other than as set forth in the Pricing 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 current or future financial position, stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole; and, to the Company’s knowledge,
no such proceedings are threatened or contemplated by governmental authorities or threatened by
others;
(n) The Company is not and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof, will not be an “investment company”, as such term is defined
in the Investment Company Act of 1940, as amended (the “Investment Company Act”);
(o) At the time of filing the Initial Registration Statement the Company was not and is not an
“ineligible issuer,” as defined under Rule 405 under the Act;
(p) Deloitte & Touche LLP, who have certified certain financial statements of the Company and
its subsidiaries, are independent public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(q) The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act and has been designed by the Company’s principal executive officer and principal
financial officer, or under their supervision, to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The Company’s internal
control over
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financial reporting is effective and the Company is not aware of any material weaknesses in
its internal control over financial reporting;
(r) Since the date of the latest audited financial statements included in the Pricing
Prospectus, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting;
(s) The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective;
(t) Except as disclosed in the Pricing Prospectus, the Company and its Significant
Subsidiaries (a) are in compliance in all material respects with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”), (b) have received all material permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and (c)
are in compliance in all material respects with all terms and conditions of any such permit,
license or approval. Except as described in the Pricing Prospectus, neither the Company nor any of
its Significant Subsidiaries is responsible for any material costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any potential liabilities to third
parties);
(u) The Company and its Significant Subsidiaries own or possess all patents, trademarks,
trademark registration, service marks, service ▇▇▇▇ registrations, trade names, copyrights,
licenses, inventions, trade secrets and rights (collectively, the “Intellectual Property”)
described in the Pricing Prospectus as being owned by any of them or necessary for the conduct of
their respective businesses and, except as described in the Pricing Prospectus, neither the Company
nor any of its Significant Subsidiaries is aware of any claim to the contrary or any challenge by
any other person to the rights of the Company or any of its Significant Subsidiaries with respect
to such rights;
(v) Except as described in the Pricing Prospectus, neither the Company nor any of its
Significant Subsidiaries is involved in any material strike, job action or labor dispute with any
group of employees, and, to the knowledge of the Company, no such action or dispute is threatened;
(w) Neither the Company nor any of its subsidiaries, nor, to the knowledge of the Company, any
director, officer, agent, employee or other person associated with or
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acting on behalf of the Company or any of its subsidiaries, has (a) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (b) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (c) violated or is in violation of any provision of the
U.S. Foreign Corrupt Practices Act of 1977; or (d) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment;
(x) The operations of the Company and its subsidiaries are and have been conducted in all
material respects in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”), and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company or any
of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened; and
(y) Neither the Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds, to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC, except as otherwise authorized
by any valid license issued by OFAC.
2. Subject to the terms and conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at a purchase price per share of $[ ], the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto and (b) in the event and to the
extent that the Underwriters shall exercise the election to purchase Optional Shares as provided
below, the Company agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares as to which such
election shall have been exercised (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying such number of Optional Shares by a fraction, the numerator of which is
the maximum number of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the
maximum number of Optional Shares that all of the Underwriters are entitled to purchase hereunder.
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The Company hereby grants to the Underwriters the right to purchase at their election up to [
] Optional Shares, at the purchase price per share set forth in the paragraph above, for the sole
purpose of covering sales of shares in excess of the number of Firm Shares, provided that the
purchase price per Optional Share shall be reduced by an amount per share equal to any dividends or
distributions declared by the Company and payable on the Firm Shares but not payable on the
Optional Shares. Any such election to purchase Optional Shares may be exercised only by written
notice from you to the Company, given within a period of 30 calendar days after the date of this
Agreement, setting forth the aggregate number of Optional Shares to be purchased and the date on
which such Optional Shares are to be delivered, as determined by you but in no event earlier than
the First Time of Delivery (as defined in Section 4 hereof) or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in definitive form, and in
such authorized denominations and registered in such names as ▇▇▇▇▇▇▇, Sachs & Co. may request upon
at least forty-eight hours’ prior notice to the Company shall be delivered by or on behalf of the
Company to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., through the facilities of the Depository Trust Company (“DTC”),
for the account of such Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer of Federal (same-day) funds to the account specified by
the Company to ▇▇▇▇▇▇▇, Sachs & Co. at least forty-eight hours in advance. The Company will cause
the certificates representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect thereto at the
office of DTC or its designated custodian (the “Designated Office”). The time and date of such
delivery and payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City time, on [
], 2009, or such other time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the date
specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. of the
Underwriters’ election to purchase such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇,
Sachs & Co. and the Company may agree upon in writing. Such time and date for delivery of the Firm
Shares is herein called the “First Time of Delivery”, such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the “Second Time of Delivery”,
and each such time and date for delivery is herein called a “Time of Delivery”.
(b) The documents to be delivered at each Time of Delivery by or on behalf of the parties
hereto pursuant to Section 8 hereof, including the cross receipt for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(j) hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Closing Location”), and the Shares will be
delivered at the Designated Office, all at Time of Delivery. A meeting will be held at the Closing
Location at [ ] p.m., New York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the purposes of this
Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally authorized or
obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you 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 this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Act; to make no further amendment or
any supplement to the Registration Statement or the Prospectus prior to the last Time of Delivery
which shall be disapproved by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the Registration Statement has
been filed or becomes effective or any amendment or supplement to the Prospectus has been filed and
to furnish you with copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or other prospectus in respect of
the Shares, of the suspension of the qualification of the Shares 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 the
Prospectus or for additional information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus or other prospectus 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 you may reasonably request to qualify
the Shares for offering and sale under the securities laws of such jurisdictions as you 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 the Shares, 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) Prior to 10:00 a.m., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters with written and
electronic copies of the Prospectus in New York City in
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such quantities as you may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to
the expiration of nine months after the time of issue of the Prospectus in connection with the
offering or sale of the Shares 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 circumstances under which they were made when such Prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if
for any other reason it shall be necessary during such same period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you 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; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Shares
at any time nine months or more after the time of issue of the Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and
electronic copies as you may request of an amended or supplemented Prospectus complying with
Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as practicable, but in any
event not later than sixteen 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 hereof and continuing to and including the date
180 days after the date of the Prospectus (the initial “Lock-Up Period”), not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose,
except as provided hereunder, of any securities of the Company that are substantially similar to
the Shares, including but not limited to any options or warrants to purchase shares of Stock or any
securities that are convertible into or exchangeable for, or that represent the right to receive,
Stock or any such substantially similar securities (other than pursuant to employee stock option
plans existing on, or upon the conversion or exchange of convertible or exchangeable securities
outstanding as of, the First Time of Delivery and as described in the Pricing Prospectus),
without the prior written consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.; provided, however, that if (1) during
the last 17 days of the initial Lock-Up Period, the Company releases earnings results or announces
material news or a material event or (2) prior to the expiration of the initial Lock-Up Period, the
Company announces that it will release earnings results during the 15-day period following the last
day of the initial Lock-Up Period, then in each case the Lock-Up Period will be automatically
extended until the expiration of the 18-day period beginning on the date of release of the earnings
results or the
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announcement of the material news or material event, as applicable, unless ▇▇▇▇▇▇▇, Sachs &
Co. waives, in writing, such extension; the Company will provide you and each stockholder subject
to the Lock-Up Period pursuant to the lockup letters described in Section 8(j) with prior notice of
any such announcement that gives rise to an extension of the Lock-Up Period; provided, however,
that the restrictions in this Section 5(e) shall not apply to the issuance and sale of Shares by
the Company pursuant to this Agreement;
(f) To furnish to its stockholders as soon as practicable after the end of each fiscal year an
annual report (including a balance sheet and statements of income, stockholders’ equity and cash
flows of the Company and its consolidated subsidiaries certified by independent public accountants)
and, as soon as practicable after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the Registration Statement),
to make available to its stockholders consolidated summary financial information of the Company and
its subsidiaries for such quarter in reasonable detail;
(g) During a period of three years from the effective date of the Registration Statement, to
furnish to you copies of all reports or other communications (financial or other) furnished to
stockholders, and to deliver to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from time to time
reasonably request other than any such information the provision of which would require new public disclosure under Regulation FD (such financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in reports furnished to its
stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of the Shares pursuant to this
Agreement in the manner specified in the Pricing Prospectus under the caption “Use of Proceeds”;
(i) To use its best efforts to list, subject to notice of issuance, the Shares on the New York
Stock Exchange (the “Exchange”);
(j) To file with the Commission such information on Form 10-Q or Form 10-K as may be required
by Rule 463 under the Act;
(k) 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; and
(l) Upon request of any Underwriter, to furnish, or cause to be furnished, to such Underwriter
an electronic version of the Company’s trademarks, servicemarks and
11
corporate logo for use on the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the Shares (the “License”); provided, however, that the
License shall be used solely for the purpose described above, is granted without any fee and may
not be assigned or transferred.
6. (a) The Company represents and agrees that, without the prior consent of ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co., it has not made and will not make any offer relating to the Shares that would constitute a
“free writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and
agrees that, without the prior consent of the Company and ▇▇▇▇▇▇▇, Sachs & Co., it has not made and
will not make any offer relating to the Shares that would constitute a free writing prospectus; any
such free writing prospectus the use of which has been consented to by the Company and ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. is listed on Schedule II(a) hereto;
(b) The Company has complied and will comply with the requirements of Rule 433 under the Act
applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or
retention where required and legending; and the Company represents that it has satisfied and agrees
that it will satisfy the conditions under Rule 433 under the Act to avoid a requirement to file
with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an Issuer Free Writing
Prospectus any event occurred or occurs as a result of which such Issuer Free Writing Prospectus
would conflict with the information in the Registration Statement, the Pricing Prospectus or the
Prospectus or 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 circumstances then
prevailing, not misleading, the Company will give prompt notice thereof to ▇▇▇▇▇▇▇, Sachs & Co.
and, if requested by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., will prepare and furnish without charge to each
Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict,
statement or omission; provided, however, that this representation and warranty shall not apply to
any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in
conformity with information furnished in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that it will pay or cause to
be paid the following: (a) the fees, disbursements and expenses of the Company’s counsel and
accountants in connection with the registration of the Shares under the Act and all other Company
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (b) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Blue Sky Memorandum, closing documents (including any compilations thereof) and
any other documents in connection with the offering, purchase,
12
sale and delivery of the Shares; (c) all expenses in connection with the qualification of the
Shares for offering and sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the Underwriters solely in
connection with such qualification and in connection with the Blue Sky survey; (d) all fees and
expenses in connection with listing the Shares on the Exchange; (e) the filing fees incident to,
and the reasonable fees and disbursements of counsel for the Underwriters solely in connection
with, any required review by the Financial Industry Regulatory Authority, Inc. of the terms of the
sale of the Shares; (f) the cost of preparing stock certificates; (g) the cost and charges of any
transfer agent or registrar; and (h) 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, and Sections 9 and 12 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees of their counsel,
stock transfer taxes on resale of any of the Shares by them, and any advertising expenses connected
with any offers they may make.
8. The obligations of the Underwriters hereunder, as to the Shares to be delivered at each
Time of Delivery, shall be subject, in their discretion, to the condition that all representations
and warranties and other statements of the Company herein are, at and as of such Time of Delivery,
true and correct, the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the
Act 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; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the
applicable time period prescribed for such filing by Rule 433; if the Company has elected to rely
upon Rule 462(b) under the Act, 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; no stop
order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus
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 your reasonable
satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, shall have furnished to you such
written opinion or opinions dated such Time of Delivery, in form and substance satisfactory to you,
with respect to such matters as you 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;
13
(c) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Company, and C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, General
Counsel for the Company, shall have furnished to you (i) their written opinions, in the form
attached hereto as Annex II(a)-1 and Annex II(a)-2, respectively, dated such Time of Delivery, in
form and substance satisfactory to you and (ii) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the
Company, shall have furnished to you their negative assurance letter, in the form attached as Annex
II(b) hereto, dated such Time of Delivery, in form and substance satisfactory to you.
(d) On the date of the Prospectus at a time prior to the execution of this Agreement, at 9:30
a.m., New York City time, on the effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at each Time of Delivery,
Deloitte & Touche LLP shall have furnished to you a letter or letters, dated the respective dates
of delivery thereof, in form and substance satisfactory to you, to the effect set forth in Annex I
hereto (the executed copy of the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a draft of the form of letter to be delivered on the effective
date of any post-effective amendment to the Registration Statement and as of each Time of Delivery
is attached as Annex I(b) hereto);
(e) (i) Neither the Company nor any of its subsidiaries shall have sustained since the date of
the latest audited financial statements included in the Pricing Prospectus 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 Pricing Prospectus, and (ii) since the respective dates as
of which information is given in the Pricing Prospectus 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, stockholders’ equity or results of operations of the Company and its
subsidiaries, taken as a whole, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(f) On or after the Applicable Time (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) On or after the Applicable Time there shall not have occurred any of the following: (i) a
suspension or material limitation in trading in securities generally on the Exchange; (ii) a
suspension or material limitation in trading in the Company’s securities
14
on the Exchange; (iii) a general moratorium on commercial banking activities declared by
either Federal or New York or California State authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States; (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by the United States of a
national emergency or war or (v) the occurrence of any other calamity or crisis or any change in
financial, political or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(h) The Shares to be sold at such Time of Delivery shall have been duly listed, subject to
notice of issuance, on the Exchange;
(i) The Company shall have obtained and delivered to the Underwriters executed copies of an
agreement from [list of stockholders to come], substantially to the effect set forth in Section
5(e) hereof in form and substance satisfactory to you;
(j) The Company shall have complied with the provisions of Section 5(c) hereof with respect to
the furnishing of prospectuses on the New York Business Day next succeeding the date of this
Agreement; and
(k) The Company shall have furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as to the
performance 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) of this Section and as to
such other matters as you may reasonably request.
9. (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 the Registration Statement, any Preliminary Prospectus, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, any Issuer Free Writing
Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Act, 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
15
statement or omission or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus, in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(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 the
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or
any amendment or supplement thereto, or any Issuer Free Writing 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 the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus,
in reliance upon and in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 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, 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
16
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 9 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 on the other from the offering of the Shares. 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 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 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 Company bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the Prospectus. 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 the 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 Shares
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
17
fraudulent misrepresentation. The Underwriters’ obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 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 each broker-dealer
affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 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 including any
person who, with his or her consent, is named in the Registration Statement as about to become a
director of the Company and to each person, if any, who controls the Company within the meaning of
the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Shares which it has
agreed to purchase hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Shares on the terms contained herein. If within
thirty-six hours after such default by any Underwriter you do not arrange for the purchase of such
Shares, 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 you to purchase such Shares on such terms.
In the event that, within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that they have so arranged
for the purchase of such Shares, you or the Company shall have the right to postpone such Time of
Delivery 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, 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 your opinion 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 this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the Shares to be purchased at such Time of Delivery, then the Company shall
have the right to require each non-defaulting Underwriter to purchase the number of shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the number of Shares which
such Underwriter agreed to purchase hereunder) of the Shares 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.
18
(c) If, after giving effect to any arrangements for the purchase of the Shares of a defaulting
Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Shares which remains unpurchased exceeds one-eleventh of the aggregate
number of all the Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase and of the Company
to sell the Optional Shares) 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 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. 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
Shares.
12. If this Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not
then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but,
if for any other reason, any Shares are not delivered by or on behalf of the Company as provided
herein, the Company will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the Shares not so
delivered, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the 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 you jointly or by ▇▇▇▇▇▇▇, Sachs & Co. on behalf of
you as the representatives.
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 you as the
representatives in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; and if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: General Counsel; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile
transmission to such
19
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting
such Questionnaire, which address will be supplied to the Company by you upon request; provided,
however, that notices under subsection 5(e) shall be in writing, and if to the Underwriters shall
be delivered or sent by mail, telex or facsimile transmission to you as the representatives in care
of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Control Room.
[contact information for signatories to the lock-up agreement to be added.] Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56
(signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record
information that identifies their respective clients, including the Company, which information may
include the name and address of their respective clients, as well as other information that will
allow the Underwriters to properly identify their respective clients.
14. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters
and the Company and, to the extent provided in Sections 9 and 11 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. No purchaser of any of the Shares from any
Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of this Agreement. As used herein, the term “business day”
shall mean any day when the Commission’s office in Washington, D.C. is open for business.
16. The Company acknowledges and agrees that (i) the purchase and sale of the Shares pursuant
to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other, (ii) in connection therewith and with the process
leading to such transaction each Underwriter is acting solely as a principal and not the agent or
fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary responsibility
in favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) or any other obligation to the Company except the obligations expressly set forth
in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the
extent each of them deemed appropriate. The Company agrees that it will not claim that the
Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or the process
leading thereto.
20
17. This Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company and the Underwriters, or any of them, with respect to the subject matter
hereof.
18. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
19. The Company and each of the Underwriters hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
20. This Agreement may be executed by any one or more of the parties hereto 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 instrument.
21. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to
any persons the U.S. federal and state income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax analyses) provided
to the Company relating to that treatment and structure, without the Underwriters imposing any
limitation of any kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to
enable any person to comply with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
21
If the foregoing is in accordance with your understanding, please sign and return to us seven
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Underwriters,
this letter and such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is 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 your part as to the authority of the signers thereof.
| Very truly yours, | ||||
| ▇▇▇▇ Food Company, Inc. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇ Fargo Securities LLC,
Deutsche Bank Securities Inc.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
▇▇▇▇▇ Fargo Securities LLC,
On behalf of each of the Underwriters
By:
|
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. | |||
By: |
||||
| Name: | ||||
| Title: | ||||
By:
|
Deutsche Bank Securities, Inc. | |||
By: |
||||
| Name: | ||||
| Title: | ||||
By: |
||||
| Name: | ||||
| Title: |
By:
|
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated | |||
By: |
||||
| Name: | ||||
| Title: | ||||
By:
|
▇▇▇▇▇ Fargo Securities, LLC | |||
By: |
||||
| Name: | ||||
| Title: |