Exhibit 1
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_________ Shares
KRAFT FOODS INC.
Class A Common Stock
UNDERWRITING AGREEMENT
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_____________ __, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Madison Avenue
New York, N.Y. 10010-3629
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
As Representatives of the Several Underwriters
Ladies and Gentlemen:
1. Introductory. Kraft Foods Inc., a Virginia corporation (the
"Company"), proposes to issue and sell __________ shares ("Firm Securities") of
its Class A Common Stock, no par value ("Securities"), and also proposes to
issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than __________ additional shares ("Optional Securities")
of its Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "Offered Securities". As part of
the offering contemplated by this Agreement, the Underwriters (as defined
herein) have agreed to reserve out of the Firm Securities purchased by them
under this Agreement, up to __________ shares, for sale to the directors,
officers and employees of the Company and its subsidiaries, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Companies Inc., a Virginia corporation (the "Parent") and the other subsidiaries
of the Parent (collectively, "Participants"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "Directed Share Program").
The Firm Securities to be sold pursuant to the Directed Share Program (the
"Directed Shares") will be sold at the public offering price. Any Directed
Shares not subscribed for by the end of the business day on which this Agreement
is executed will be offered to the public by the Underwriters as set forth in
the Prospectus. The Company is a wholly owned subsidiary of the Parent. The
Company hereby agrees with the several Underwriters named in Schedule A hereto
("Underwriters") as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-57162) relating to the
Offered Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission (the "Commission") and either (i) has
been declared effective under the Securities Act of 1933, as amended (the
"Act") and is not proposed to be amended or (ii) is proposed to be amended
by amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been declared effective, either
(i) 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 (ii) 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 (i) 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 (ii) 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
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 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 and including 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, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement incorporated by reference
therein and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "Additional Registration
Statement". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"Registration Statements" and individually as a "Registration Statement".
The form of
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prospectus relating to the Offered Securities, 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, is hereinafter referred to as the "Prospectus". No
document has been or will be prepared or distributed in reliance on Rule
434 under the Act.
(b) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) 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, (ii) on
the Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all 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
(iii) on the date of this Agreement and on each Closing Date (as defined
below), 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 respects to
the requirements of the Act and the Rules and Regulations, and neither 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
subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement and on each Closing
Date, the Initial Registration Statement and the Prospectus will conform in
all respects to the requirements of the Act and the Rules and Regulations,
neither 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(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Virginia, with power and authority (corporate and other) to own and lease
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 such failure to be so qualified or be in good standing would not
individually or in the aggregate have a material adverse effect on the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as a whole ("Material
Adverse Effect").
(d) Each subsidiary of the Company that is a "significant
subsidiary" as defined in Rule 1-02(w) of Regulation S-X under the Act (the
"Significant Subsidiaries") has been duly
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incorporated or organized, as the case may be, and is an existing
corporation or limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, with power and authority (corporate, limited liability
company and other) to own and lease its properties and conduct its business
as described in the Prospectus; and each Significant Subsidiary is duly
qualified to do business as a foreign corporation or limited liability
company, as the case may be, 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 be so qualified or
be in good standing would not individually or in the aggregate have a
Material Adverse Effect; all of the issued and outstanding capital stock or
limited liability company interests of each Significant Subsidiary has been
duly authorized and validly issued and is fully paid and nonassessable; and
the capital stock or limited liability company interests of each
Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from claims, liens, encumbrances or other
adverse claims. Annex I attached hereto sets forth all of the Significant
Subsidiaries.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date, such Offered Securities will have been,
validly issued, fully paid and nonassessable and will conform, and all
other outstanding shares of capital stock of the Company conform, to the
description thereof contained in the Prospectus; the Company's authorized
equity capitalization is as set forth in the Prospectus; the certificates
for the Offered Securities will be in valid and sufficient form; except as
disclosed in the Prospectus, the shareholders of the Company have no
preemptive rights with respect to the Securities or other rights to
subscribe for the Securities; except as set forth in the Prospectus, no
options, warrants or other rights to purchase, agreements or other
obligations to issue, or rights to convert any obligations into or exchange
any securities for, shares of capital stock of or ownership interests in
the Company are outstanding.
(f) 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 in connection with this offering.
(g) 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 the Act with respect to any securities of the
Company 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.
(h) The Offered Securities have been approved for listing on the
New York Stock Exchange subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except (i) such as have been obtained and made under the Act, (ii)
such as may be required under state securities laws and (iii) such as may
be required under foreign securities laws (other than such as may be
required under the securities laws and
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regulations of foreign jurisdictions in connection with the offering of the
Directed Shares outside of the United States).
(j) The execution, delivery and performance of this Agreement,
the Corporate Agreement, dated as of _____ __, 2001, between the Parent and
the Company (the "Corporate Agreement"), the Services Agreement, dated as
of _____ __, 2001 between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Corp. and the Company
(the "Services Agreement") and the Tax Sharing Agreement, dated as of April
11, 2001 between the Parent and the Company (the "Tax Sharing Agreement,"
and collectively with the Corporate Agreement and the Services Agreement,
the "Intercompany Agreements"), and the issuance and sale of the Offered
Securities will not conflict with or result in a breach or violation of any
of the terms and provisions of, or constitute a default under, or result in
the imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary of the Company pursuant to, any law
or 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 respective
properties, or 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 the charter or by-laws of the Company or any such
subsidiary, which conflict, breach, default, lien, charge or encumbrance
would have a Material Adverse Effect or have a material adverse effect on
the transactions contemplated by this Agreement, and the Company has full
power and authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Company and its Significant 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 the Company and its Significant
Subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere with
the use made or to be made thereof by them; and each of the Company and its
Significant Subsidiaries owns or leases all such properties as are
necessary to the conduct of its operations as presently conducted.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct their business as described in the
Prospectus 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,
would individually or in the aggregate have a Material Adverse Effect.
(n) No labor problem or dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the Company, is
threatened that might have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, all material trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual
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property rights") necessary to conduct the business now operated by them,
or presently employed by them, and neither the Company nor any subsidiary
of the Company has 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,
would individually or in the aggregate have a Material Adverse Effect.
(p) 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
would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(q) 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 individually or in
the aggregate the Company reasonably expects 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 no such
actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
(r) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation, judgment, order or
decree of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or
such subsidiary or any of its properties, as applicable, except (A) in the
case of clause (i) with respect to subsidiaries of the Company that are not
Significant Subsidiaries, for violations or defaults that would not
individually or in the aggregate have a Material Adverse Effect and (B) in
the case of clauses (ii) and (iii) for violations or defaults that would
not individually or in the aggregate have a Material Adverse Effect.
(s) The financial statements included in each Registration
Statement and the Prospectus present fairly (i) the combined financial
position of the Company and its subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown and (ii)
the financial position of Nabisco Holdings Corp. and its consolidated
subsidiaries as of the dates shown and their results of operations and cash
flows for the period shown, and all such financial statements have been
prepared in conformity with the generally accepted accounting principles in
the United States applied on a consistent basis and comply as to form with
the applicable accounting requirements of the Act; the schedules included
in each Registration Statement present fairly the information required to
be stated therein; the summary and selected financial data included in each
Registration Statement and the Prospectus present fairly, on the basis
stated in each Registration Statement and the Prospectus, the information
shown therein; the pro forma
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financial statements included in each Registration Statement and the
Prospectus comply as to form in all material respects with Regulation S-X
under the Act; 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.
(t) (i) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Company and its consolidated subsidiaries and
delivered their report with respect to the audited combined financial
statements and schedule of the Company included in each Registration
Statement and the Prospectus are independent public accountants with
respect to the Company within the meaning of the Act and the Rules and
Regulations; and (ii) Deloitte & Touche LLP, who have audited certain
financial statements of Nabisco Holdings Corp. and its consolidated
subsidiaries and delivered their report with respect to the audited
consolidated financial statements included in each Registration Statement
and the Prospectus, are independent public accountants with respect to
Nabisco Holdings Corp. within the meaning of the Act and the Rules and
Regulations.
(u) 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 reasonably
likely to have 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, 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.
(v) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940, as amended.
(w) There is no franchise, contract or other document of a
character required to be described in any Registration Statement or the
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required; and the statements in the Prospectus under the headings
"Certain United States Federal Tax Consequences For Non-United States
Shareholders," "Business - Regulation," "Business - Intellectual Property,"
"Business - Legal Proceedings," "Description of Capital Stock" and
"Relationship with ▇▇▇▇▇▇ ▇▇▇▇▇▇," insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are
accurate and fair summaries of such legal matters, agreements, documents or
proceedings.
(x) No Significant Subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the
Company, from making any other distribution on such Significant
Subsidiary's capital stock, from repaying to the Company any loans or
advances to such Significant Subsidiary from the Company or from
transferring title to any of such Significant Subsidiary's property or
assets to the Company or any other subsidiary of the Company, except (i) as
described in or contemplated by the Prospectus or (ii) in the case of any
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Significant Subsidiaries organized outside of the United States, the
effects of foreign tax laws and monetary exchange policies.
(y) Each of the Intercompany Agreements has been duly
authorized, executed and delivered by the Company and constitutes a valid
and legally binding obligation of the Company, enforceable against the
Company in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(z) (i) The Registration Statement, the Prospectus and any
preliminary prospectus comply, and any further amendments or supplements
thereto will comply, with any applicable laws or regulations of foreign
jurisdictions in which the Prospectus or any preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with
the Directed Share Program, and (ii) no authorization, approval, consent,
license, order, registration or qualification of or with any government,
governmental instrumentality or court, other than such as have been
obtained, is necessary under the securities law and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the United
States.
(aa) Offers in the Directed Share Program will be made only to
employees of the Company, the Parent and their subsidiaries and have not
been made to any other persons.
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, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ ___ per share, the respective numbers
of shares of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives
through the facilities of The Depository Trust Company ("DTC") for the accounts
of the Underwriters, against payment of the purchase price in Federal (same day)
funds by official bank check or checks or wire transfer to an account at a bank
identified by the Company to Credit Suisse First Boston Corporation ("CSFBC")
and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ("SSB") drawn to the order of the Company, at the
office of Hunton & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at [9:00
A.M.], New York time, on _________ __, 2001, or at such other time not later
than seven full business days thereafter as CSFBC, SSB and the Company
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 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
offering. The certificates for the Firm Securities so to be delivered will be in
the form of one or more global securities in definitive form deposited with DTC
and registered in the name of Cede & Co., as nominee for DTC, and will be made
available for checking at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC and SSB given to the
Company 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 Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears
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to the total number of shares of Firm Securities (subject to adjustment by CSFBC
and SSB 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 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 up to five times and to the extent not
previously exercised may be surrendered and terminated at any time upon notice
by CSFBC and SSB to the Company.
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
and SSB but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given. The Company will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives through the facilities of DTC for the accounts of the several
Underwriters, against payment of the purchase price therefor in Federal (same
day) funds by official bank check or checks or wire transfer to an account at a
bank acceptable to CSFBC and SSB drawn to the order of the Company, at the above
office of Hunton & ▇▇▇▇▇▇▇▇. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in the form of one or more
global securities in definitive form deposited with DTC and registered in the
name of Cede & Co., as nominee for DTC and will be made available for checking
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 Offered Securities for sale to the public as
set forth in the Prospectus.
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 and SSB,
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. If the Effective Time of the Initial Registration
Statement has not occurred prior to the execution and delivery of this
Agreement, the Company will use its best efforts to cause the Initial
Registration Statement and any amendment thereof to become effective and
will file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (3) of Rule 424(b) not later than the second business day
following the execution and delivery of this Agreement. The Company will
advise CSFBC and SSB 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 and SSB.
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(b) The Company will advise CSFBC and SSB 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 and
SSB's consent; and the Company will also advise CSFBC and SSB 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 or the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Offered Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose and will use its best
efforts to prevent the issuance of any such stop order or the suspension of
any such qualification 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 and SSB 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 or SSB'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 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 (sixteen 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
Prospectus and all amendments and supplements to such documents, in each
case in such quantities as CSFBC and SSB reasonably request. 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 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 use its reasonable efforts to arrange for
the qualification of the Offered Securities for sale under the laws of such
jurisdictions as CSFBC and SSB
10
reasonably designate and will continue such qualifications in effect so
long as required for the distribution; provided that the Company will not
be required to qualify to do business in any jurisdiction where it is not
now qualified or take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now
subject.
(g) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing fees
and other expenses (including reasonable fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC or SSB reasonably
designates and the printing of memoranda relating thereto, for the filing
fee incident to the review by the National Association of Securities
Dealers, Inc. ("NASD") of the Offered Securities, 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 all fees and expenses incidental
to the listing of the Offered Securities on the New York Stock Exchange and
the registration of the Offered Securities under the Exchange Act, and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(h) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of (or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any affiliate of the Company or any person in privity with the Company or
any affiliate of the Company), directly or indirectly, including the filing
(or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any other shares of the
Company's Securities, any shares of the Company's Class B Common Stock or
any securities convertible into or exchangeable or exercisable for any
shares of the Company's Securities or the Company's Class B Common Stock,
or publicly announce or disclose an intention to effect any such
transaction, without the prior written consent of CSFBC and SSB, except (i)
issuances of Securities pursuant to the conversion of the Company's Class B
common stock outstanding on the date hereof, (ii) grants of employee stock
options or stock appreciation rights pursuant to the terms of a plan
described in the Prospectus or otherwise described in the Prospectus, (iii)
issuances of the Company's Securities pursuant to the exercise of any
employee stock options granted pursuant to the terms of a plan described in
the Prospectus, (iv) issuances of the Company's Securities pursuant to the
Company's employee benefit plans which are described in the Prospectus or
the Company's dividend reinvestment plan or (v) issuances of the Company's
Securities in connection with the merger with or acquisition of another
corporation or entity or the acquisition of the assets or properties of any
such corporation or entity and the related entry into a merger or
acquisition agreement with respect to such merger or acquisition, so long
as the recipients of the Company's Securities agree in writing prior to the
consummation of any such transaction, pursuant to an instrument in form and
substance reasonably satisfactory to CSFBC and SSB, to be bound by the
provisions of this Section 5(h) for the remainder of the lockup period as
if such recipients were the Company, and the public announcements and
related filings of registration statements with respect to any such
issuances; provided that if the Company is unable to obtain signed, written
lockup agreements from the recipients of the Company's Securities in
connection with a merger or acquisition as described in clause (v) of this
Section 5(h), then only the entry into the merger or acquisition agreement,
the public announcement of
11
such transaction and the related filing of a registration statement shall
be permitted and not the related issuance of the Company's Securities.
(i) The Company will not take, directly or indirectly, any
action designed or that would constitute or that might reasonably be
expected to cause or result in, under the Exchange Act or otherwise,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Offered Securities.
(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
the effectiveness of the Registration Statement. The Company will direct
the transfer agent to place stop transfer restrictions upon such securities
for such period of time.
(k) The Company will pay any fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share Program
and stamp duties, similar taxes or duties or other taxes, if any, incurred
by the underwriters in connection with the Directed Share Program.
Furthermore, the Company covenants with the Underwriters that the Company
will comply with all applicable securities and other applicable laws, rules
and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
6. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the 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 herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its 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 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 schedule audited
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 of the Company included in the Registration
Statements;
12
(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 and the Parent
who have responsibility for financial and accounting matters and
other specified procedures, including, without limitation, the
reading of the minutes of the Boards of Directors of each of the
Parent and the Company and the committees thereof, nothing came to
their attention that caused them to believe that:
(A) the unaudited financial statements of the Company
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) 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
subsidiaries or, at the date of the latest available balance
sheet read by such accountants, there was any decrease in
combined net current assets or net assets (shareholder's equity),
as compared with amounts shown on the latest balance sheet
included in the Prospectus;
(C) for the period from the closing date of the latest
statement of earnings included in the Prospectus to the closing
date of the latest available statement of earnings read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year, in combined operating
revenue, operating income, net earnings or basic or diluted
earnings per share of the Company; or
(D) the information included in the Registration Statements
and the Prospectus in response to Regulation S-K, Item 301
(Selected Financial Data) and Item 402 (Executive Compensation)
is not in conformity with the applicable disclosure requirements
of Regulation S-K;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter,
in which case the letter shall be accompanied by an explanation
by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives;
(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
13
dollar amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter;
(v) on the basis of a reading of the unaudited condensed combined
pro forma financial statements included in the Registration
Statements and the Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries
of certain officials of the Company and the Parent who have
responsibility for financial and accounting matters; and proving the
arithmetic accuracy of the application of the pro forma adjustments
to the historical amounts in the pro forma financial statements,
nothing came to their attention which caused them to believe that
the pro forma financial statements do not comply as to form in all
material respects with the applicable accounting requirements of
Rule 11-02 of Regulation S-X or that the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of such statements;
(vi) 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 of Nabisco Holdings Corp. at and for the nine
months ended September 30, 2000 included in the Registration
Statements; and
(vii) on the basis of the review referred to in clause (vi) above,
a reading of the latest available interim financial statements of
Nabisco Holdings Corp., inquiries of officials of the Company and
the Parent who have responsibility for financial and accounting
matters and other specified procedures, including, without
limitation, a reading of the minutes of the Boards of Directors of
Nabisco Holdings Corp. and the committees thereof, if any, nothing
came to their attention that caused them to believe that the
unaudited financial statements of Nabisco Holdings Corp. at and for
the nine months ended September 30, 2000 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.
For purposes of this subsection and Section 6(b) below, (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 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
14
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 Deloitte & Touche 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 audited 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 of Nabisco Holdings Corp. at and for the nine
months ended September 30, 1999 included in the Registration
Statements; and
(iii) on the basis of the review referred to in clause (ii) above,
inquiries of officials of Nabisco Holdings Corp. who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that the unaudited financial statements of Nabisco
Holdings Corp. 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.
(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 and SSB. 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 and SSB. 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 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
reasonably likely to have a prospective change, in the condition (financial
or other), business, properties or results of operations of the Company and
its subsidiaries taken as one enterprise which, in the judgment of CSFBC
and SSB, 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 the
Company or 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
15
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 material
suspension or material limitation of trading in securities generally on the
New York Stock Exchange, 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
CSFBC and SSB, 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 Hunton & ▇▇▇▇▇▇▇▇, counsel for the Company,
substantially to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
Commonwealth of Virginia, with corporate power and authority to own
and lease its properties and conduct its business as described in the
Prospectus;
(ii) Each Significant Subsidiary that is incorporated or
organized under the laws of a State or Commonwealth of the United
States of America (the "U.S. Significant Subsidiaries") has been duly
incorporated or organized, as the case may be, and is an existing
corporation or limited liability company, as the case may be, in good
standing under the laws of the jurisdiction of its incorporation or
organization, with corporate or limited liability company power and
authority to own and lease its properties and conduct its business as
described in the Prospectus; all of the issued and outstanding capital
stock or limited liability company interests of each U.S. Significant
Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and all outstanding shares of capital stock or
limited liability company interests of each Significant Subsidiary are
owned by the Company, directly or through subsidiaries, to the
knowledge of such counsel, free from security interests, claims, liens
and encumbrances;
(iii) The Offered Securities delivered on such Closing Date
and all other outstanding shares of the 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; the Company's authorized equity capitalization is as set
forth in the Prospectus; the certificates for the Offered Securities
are in valid and sufficient form; the shareholders of the Company are
not entitled to statutory preemptive or to such counsel's knowledge
and except as disclosed in the Prospectus, other similar contractual
rights to subscribe for the Securities; except as set forth in the
Prospectus, to such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding;
(iv) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings known to such counsel between
the Company and any person granting such person the right to require
the Company to file a registration
16
statement under the Act with respect to any securities of the Company
or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act;
(v) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(vi) No consent, approval, authorization or order of, or
filing with, any governmental agency or body of the United States of
America, the State of New York or the Commonwealth of Virginia or, to
such counsel's knowledge, any court thereof is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
(vii) The execution, delivery and performance of this
Agreement and each of the Intercompany Agreements by the Company and
the issuance and sale of the Offered Securities will not conflict with
or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any material property or material
assets of the Company or any Significant Subsidiary pursuant to any
law or statute, or to such counsel's knowledge, any rule, regulation
or order of any governmental agency or body of the United States of
America, the State of New York or the Commonwealth of Virginia or, to
such counsel's knowledge, any court thereof having jurisdiction over
the Company or any Significant Subsidiary or any of their properties,
or any agreement or instrument to which the Company or any Significant
Subsidiary is a party or by which the Company or any Significant
Subsidiary is bound or to which any of the properties of the Company
or any Significant Subsidiary is subject and listed on Exhibit A to
this opinion, or the charter or by-laws of the Company or any U.S.
Significant Subsidiary, and the Company has full corporate power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement;
(viii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion, the Additional Registration Statement (if any) was filed and
became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either was
filed with the Commission pursuant to the subparagraph of Rule 424(b)
specified in such opinion on the date specified therein or was
included in the Initial Registration Statement or the Additional
Registration Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the effectiveness
of a Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are pending or
contemplated under the Act, and each Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that on its
effective date or such later date, if any, any Registration Statement
was
17
last deemed amended, such Registration Statement contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its date and on such Closing Date, included
or includes any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (in each case other than the financial statements and
other financial data contained therein, as to which such counsel need
express no opinion); the descriptions in the Registration Statements
and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents (other than with respect to matters
relating to the Federal Food, Drug and Cosmetic Act and the United
States Department of Agriculture and state laws and regulations
covering similar matters and other than with respect to the National
Cheese Exchange cases described under the caption "Business - Legal
Proceedings" as to which such counsel need express no opinion) under
the captions "Business - Regulation," "Business - Intellectual
Property," "Business - Legal Proceedings," "Description of Capital
Stock" and "Relationship with ▇▇▇▇▇▇ ▇▇▇▇▇▇," insofar as such
descriptions constitute summaries of the legal matters, documents or
proceedings referenced therein, are accurate in all material respects
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in a Registration Statement or the Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in a Registration Statement or
the Prospectus or to be filed as exhibits to a Registration Statement
which are not described and filed as required;
(ix) This Agreement has been duly authorized, executed and
delivered by the Company; and
(x) Each of the Intercompany Agreements have been duly
authorized, executed and delivered by the Company and constitute valid
and legally binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
Such opinion shall be limited in all respects to matters governed by the
laws of the State of New York and the Commonwealth of Virginia and the
Federal laws of the United States of America. Such counsel may rely as to
certain matters of fact, to the extent they deem proper and so long as
acceptable in the reasonable opinion of CSFBC and SSB, on certificates of
responsible officers of the Company and public officials.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President, General
Counsel and Corporate Secretary of the Company, substantially to the effect
that:
(i) 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 and where the failure to be so
qualified would, individually or in the aggregate, have a Material
Adverse Effect,
18
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus;
notwithstanding the foregoing, the Company is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of __________ and _________;
(ii) Each U.S. Significant Subsidiary is duly qualified to do
business as a foreign corporation or limited liability company, as the
case may be, in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification and where the failure to be so qualified would,
individually or in the aggregate, have a Material Adverse Effect,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus;
notwithstanding the foregoing, each U.S. Significant Subsidiary is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of those jurisdictions set forth on Annex I
hereto;
(iii) No consent, approval, authorization or order of, or
filing with, any governmental agency or body of the State of Illinois
or, to such counsel's knowledge, any court thereof is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities laws;
(iv) The execution, delivery and performance of this
Agreement and each of the Intercompany Agreements by the Company and
the issuance and sale of the Offered Securities will not conflict with
or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company
or any Significant Subsidiary pursuant to any law or statute, any
rule, regulation or order of any governmental agency or body of the
State of Illinois or, to such counsel's knowledge, any court thereof
having jurisdiction over the Company or any Significant Subsidiary or
any of their properties;
(v) Such counsel has no reason to believe that on its
effective date or such later date, if any, any Registration Statement
was last deemed amended, such Registration Statement contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or
supplement thereto, as of its date and on such Closing Date, included
or includes any untrue statement of a material fact or omitted or
omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading (in each case other than the financial statements and
other financial data contained therein, as to which such counsel need
express no opinion); the descriptions in the Registration Statements
and Prospectus of statutes, legal and governmental proceedings and
contracts and other documents (including with respect to matters
relating to the Federal Food, Drug and Cosmetic Act and the United
States Department of Agriculture and state laws and regulations
covering similar matters and including with respect to the National
Cheese Exchange cases described under the caption "Business - Legal
Proceedings") under the captions "Business - Regulation," "Business -
Intellectual Property," "Business - Legal Proceedings" and
"Relationship with ▇▇▇▇▇▇ ▇▇▇▇▇▇," insofar as such
19
descriptions constitute summaries of the legal matters, documents or
proceedings referenced therein, are accurate in all material respects
and fairly present the information required to be shown; and such
counsel does not know of any legal or governmental proceedings
required to be described in a Registration Statement or the Prospectus
which are not described as required or of any contracts or documents
of a character required to be described in a Registration Statement or
the Prospectus or to be filed as exhibits to a Registration Statement
which are not described and filed as required.
Such opinion shall be limited in all respects to matters governed by the
laws of the State of Illinois and the Federal laws of the United States of
America.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, special tax counsel
for the Company, to the effect that the statements in the Prospectus under
the heading "Certain United States Federal Tax Consequences For Non-United
States Shareholders," insofar as such statements purport to constitute
summaries of matters of United States federal tax law and regulations or
legal conclusions with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇▇▇ Rechtsanwalte, Swiss counsel for the
Company, to the effect that:
(i) Each Significant Subsidiary incorporated or organized
under the laws of Switzerland (the "Non-U.S. Significant
Subsidiaries") has been duly incorporated and is validly existing as a
corporation or limited liability company, as the case may be, under
the laws of Switzerland, with corporate power and authority to own and
lease its properties and conduct its business as currently conducted;
all of the issued shares or quotas, as the case may be, of each Non-
U.S. Significant Subsidiary of the Company have been duly and validly
authorized and issued, and are fully paid and nonassessable; and
(ii) No approval, authorization or filing with any Swiss
court or governmental agency, or any Swiss stock exchange authorities
is required under Swiss law in connection with the execution by the
Company of this Agreement and the performance of its obligations
hereunder, or for the issue and sale of the Offered Securities by the
Company.
(i) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as the
Representatives may require, 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. In rendering such opinion, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ may rely as to the incorporation of the Company and all other
matters governed by Virginia law upon the opinion of Hunton & ▇▇▇▇▇▇▇▇
referred to above.
(j) 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
20
Company in which such officers shall state that, to their knowledge: the
representations and warranties of the Company in this 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 date of the most
recent financial statements in the Prospectus, there has been no material
adverse change, nor any development or event reasonably likely to have 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.
(k) 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 days prior to such
Closing Date for the purposes of this subsection.
(l) The Representatives shall have received a letter, dated such
Closing Date, of Deloitte & Touche 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 days prior to such
Closing Date for the purposes of this subsection.
(m) The Offered Securities shall have been listed and admitted
and authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Representatives.
(n) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from the Parent and
certain directors, executive officers and other employees of the Company,
the Parent and their subsidiaries agreed upon by the Representatives and
the Company.
(o) 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 Parent in which such officers shall
state that, to their knowledge: (i) the representations and warranties of
the Parent in the letter agreement delivered by the Parent to you
concurrently with the execution and delivery of this Agreement are true and
correct; and (ii) the Parent has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied under such letter
agreement at or prior to such Closing Date.
(p) Prior to the Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC and SSB may in their sole
21
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. The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, 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, 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; 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 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 (b) below; and provided, further,
that that with respect to any untrue statement or omission of material fact made
in any preliminary prospectus, the indemnity agreement contained in this Section
7(a) shall not inure to the benefit of any Underwriter from whom the person
asserting any such loss, claim, damage or liability purchased the Offered
Securities concerned, to the extent that any such loss, claim, damage or
liability of such Underwriter occurs under the circumstance where it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (w) the Company had previously furnished copies of the Prospectus
to the Representatives, (x) delivery of the Prospectus was required by the Act
to be made to such person, (y) the untrue statement or omission of a material
fact contained in the preliminary prospectus was corrected in the Prospectus and
(z) there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus.
The Company agrees to indemnify and hold harmless each Underwriter,
its partners, directors and officers and each person, if any, who controls such
Underwriter within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act (the "Designated Entities"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company or the Parent for distribution to
Participants in connection with the Directed Share Program or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant agreed to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of such Designated Entity; provided that in the case of the indemnity
provided by clause (ii), the Company will only be liable for net losses caused
by such failures to the extent the aggregate of all such net losses exceeds
$1,000,000 and then only to the extent of such excess.
22
Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, 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 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 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 fourth
paragraph under the caption "Underwriting" and the information contained in the
twelfth, thirteenth and fourteenth paragraphs under the caption "Underwriting."
(a) 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 the indemnifying party under
subsection (a) or (b) 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) or (b) above. In case any such action is brought against
any indemnified party and it notifies the 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 (i) without the
prior written consent of the indemnified party (which consent shall not be
unreasonably withheld), settle, compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
(A) includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding and (B) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of an indemnified party, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss of liability by reason of such settlement or
judgment.
(b) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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) or (b) above (i) in
such proportion as is appropriate to
23
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other from the offering of the 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 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 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. 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 hand, 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 (d) 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 (d). 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 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 (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(c) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 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.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First 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 and SSB may make arrangements satisfactory to the Company 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, SSB and the Company 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 or the
Company, except as provided in Section 9 (provided that if such default occurs
with respect to Optional Securities after the
24
First Closing Date, this Agreement will not terminate as to the 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 Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement and of the officers of the Parent
set forth in the officers' certificate delivered 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, 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 the obligations of the Underwriters with respect to any offering
of Securities are 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 it
pursuant to Section 5 and the respective obligations of the Company 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 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
substantiated 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
Madison Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory
Group and ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇, Attention: General Counsel, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at Kraft Foods 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 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 of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC or SSB 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.
25
The Company 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.
26
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, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
KRAFT FOODS INC.
By: ______________________________
Name:
Title:
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By Credit Suisse First Boston Corporation
By: _________________________________
Title:
By ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
By: _________________________________
Title:
27
SCHEDULE A
Underwriter Number of
----------- ---------
Firm Securities
---------------
Credit Suisse First Boston Corporation............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc..........................................
Deutsche Bank Alex. ▇▇▇▇▇ Inc.....................................
▇.▇. ▇▇▇▇▇▇ Securities Inc........................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated.................................
UBS Warburg LLC...................................................
BNP Paribas.......................................................
HSBC Securities (USA) Inc.........................................
▇▇▇▇▇▇ Brothers Inc...............................................
▇▇▇▇▇▇▇▇ & Partners, L.P..........................................
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ Securities LLC.....................
Prudential Securities Incorporated................................
▇▇▇▇▇▇▇ & Co., Inc................................................
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ & Co., LLC...................................
▇▇▇▇▇▇▇▇ Capital Partners, L.P....................................
_______________
Total................................................... ===============
ANNEX I
SIGNIFICANT SUBSIDIARIES
Subsidiary Foreign Qualifications
---------- ----------------------
Kraft Foods North America, Inc.
Kraft Foods Holdings, Inc.
Kraft Foods International, Inc.
Kraft Foods Holdings (Europa) GmbH
Kraft Foods Schweiz Holdings AG
Nabisco Holdings Corp.
Nabisco Inc.