EXHIBIT 1.1
UNDERWRITING AGREEMENT
[Date]
[Underwriter(s)]
Dear Sirs:
ANHEUSER-XXXXX COMPANIES, INC. (the "Company") proposes to issue and sell
from time to time certain of its debt securities referred to below (the
"Securities") registered under the registration statement referred to below. The
Securities will be issued under an Indenture (the "Indenture"), dated as of
______________ between the Company and _____________, as Trustee, and will have
varying designations, interest rates and times of payment of any interest,
maturities, redemption provisions and other terms, with all such terms for any
particular series of the Securities being determined at the time of the sale.
Particular series of the Securities may be sold to you, and to other firms on
whose behalf you may act, for resale in accordance with the terms of offering
determined at the time of sale. The Securities involved in any such offering are
hereinafter referred to as the "Purchased Securities", and the firms which agree
to purchase the same are hereinafter referred to as the "Underwriters" of such
Purchased Securities. The terms and conditions herein shall constitute a
separate agreement between the Company and the respective Underwriters in regard
to each offering of Purchased Securities.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (herein
referred to collectively as the "Act"), registration statements on Form S-3 (No.
333-11929 and No. 333-___________) relating to the Securities which became
effective on October 3, 1996 and ____________, 1997, respectively, which include
a prospectus in respect of such registration statements. Such registration
statements, as amended or supplemented by a Prospectus Supplement with respect
to an offering of Purchased Securities as referred to in Section 1 below and all
prior amendments and supplements thereto (other than supplements relating to
Securities that are not Purchased Securities) including the Prospectus dated
_____________, 1997, and including all documents filed as a part thereof or
incorporated therein, are hereinafter together referred to as the "Registration
Statement," and such prospectus, as so amended or supplemented, including all
documents incorporated by reference therein, as the "Prospectus."
This Agreement shall not limit or affect the right of the Company to offer
or sell any of the Securities through any other underwriters or agents or
through any other arrangements specified by the Company from time to time, and
this Agreement shall apply only to Securities in respect of which a Terms
Agreement shall have been executed as referred to herein.
The Company and the Underwriters agree as follows:
1. PURCHASE AND OFFERING.
(a) The obligations of the Underwriters to purchase the Purchased
Securities will be evidenced by an exchange of telegraphic or other written
communications (a "Terms Agreement") at each time the Company determines to sell
Purchased Securities. Each Terms Agreement shall specify the firms which will be
Underwriters (who shall become bound by the terms hereof when the Terms
Agreement has been entered into), the principal amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and the terms of
the Purchased Securities not already specified in the Indenture, including, but
not limited to, interest rates, maturities, redemption provisions and sinking
fund requirements. Each Terms
Exhibit 1.1 1
Agreement shall also specify the date of delivery and payment for the Purchased
Securities other than any Contract Securities (as defined below) and any details
of the terms of offering which should be reflected in the Prospectus Supplement
relating to the offering of the Purchased Securities. Such Prospectus Supplement
shall set forth the terms contained in the Terms Agreement and such other
information that you and the Company agree at the time the Terms Agreement is
entered into should be included in the Prospectus Supplement. Insofar as any
provision of this Agreement is inconsistent with any Terms Agreement, the Terms
Agreement shall be deemed to control. Each Terms Agreement shall be
substantially in the form of Schedule I hereto, with such changes therein as the
Company may approve. Purchased Securities to be purchased by Underwriters are
herein referred to as "Underwriters' Securities," and any Purchased Securities
to be purchased pursuant to Delayed Delivery Contracts (as defined below) as
hereinafter provided are herein referred to as "Contract Securities." The
obligations of the Underwriters to purchase the Underwriters' Securities shall
be several and not joint. It is understood that the Underwriters propose to
offer the Purchased Securities for sale as set forth in such Prospectus
Supplement.
(b) Payment of the purchase price for the Underwriters' Securities shall be
made to the Company or its order by wire transfer of immediately available funds
or in other manner satisfactory to the Company against delivery of the
Underwriters' Securities to you for the respective accounts of the Underwriters.
Such payment and delivery shall be made at 10:00 A.M.(1) on the date of delivery
specified in the Terms Agreement (unless another time not later than 10:00 A.M.
on the third business day(2) thereafter shall be agreed to by you and the
Company or unless postponed in accordance with the provisions of Section 6
hereof). The time and date that such payment and delivery are actually made is
herein sometimes referred to as the "time of purchase." The Underwriters'
Securities shall be delivered to you in definitive form, in temporary or final
form, and in such names and such principal amounts as, not later than 10:00 A.M.
on the business day immediately preceding the time of purchase, you shall
specify. For the purpose of expediting the checking and packaging of the
Underwriters' Securities by you, the Company agrees to make them available to
you for such purpose prior to the close of business on the business day
preceding the time of purchase.
(c) If any Terms Agreement provides for sales of Purchased Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Contract Securities pursuant to delayed delivery
contracts substantially in the form of Schedule II attached hereto (the "Delayed
Delivery Contracts") with such changes therein as the Company may approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. At the time of purchase
the Company will pay you as compensation, for the accounts of the Underwriters,
the compensation set forth in such Terms Agreement in respect of the principal
amount of Contract Securities. The Underwriters will not have any responsibility
in respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts, the Contract
Securities shall be deducted from the Purchased Securities to be purchased by
the several Underwriters and the aggregate principal amount of Purchased
Securities to be purchased by each Underwriter shall be reduced pro rata in
proportion to the principal amount of Purchased Securities set forth opposite
each Underwriter's name in such Terms Agreement, except to the extent that you
determine that such reduction shall be otherwise allocated and so advise the
Company.
2. CERTAIN COVENANTS OF THE COMPANY: The Company agrees:
---------------
(1) Times mentioned herein are New York City times.
(2) As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
Exhibit 1.1 2
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Purchased Securities for offering and sale and in
determining their eligibility for investment under the laws of such states as
you may designate; provided that the Company shall not be required to qualify as
a foreign corporation or to consent to the service of process in any state
(except with respect to the offering and sale of the Purchased Securities);
(b) to make available to you and the Underwriters, as soon as available, as
many copies of the Registration Statement, each related preliminary prospectus,
the Prospectus, any documents incorporated by reference therein at or after the
date thereof, and any amendments or supplements thereto (except that supplements
relating to Securities that are not Purchased Securities will be furnished only
to you), as you may reasonably request for the purposes contemplated by the Act;
(c) to advise you promptly (confirming such advice in writing) of any
request by the Securities and Exchange Commission (the "Commission") for
amendments to the Registration Statement or Prospectus (including documents
deemed to be incorporated by reference into the Prospectus) or for additional
information with respect thereto and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon as
possible;
(d) so long as any of the Purchased Securities shall remain outstanding, to
furnish to you and, upon request, to each of the other Underwriters such
consolidated statements of income, retained earnings and changes in financial
position and balance sheets of the Company as it shall furnish to holders of the
Purchased Securities and as it shall file with the Commission;
(e) to advise you promptly of the happening of any event known to the
Company within the time during which a prospectus relating to the Purchased
Securities is required to be delivered under the Act which, in the judgment of
the Company, would require the making of any change in the Prospectus then being
used or in the information incorporated by reference therein so that the
statements therein would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in light
of the circumstances under which they are made, not misleading, and to prepare
and furnish to the Underwriters promptly such amendments or supplements to such
prospectus as may be necessary to reflect any such change;
(f) to make generally available to its security holders an earnings
statement of the Company (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Act not later than 45 days after the end of
the 12-month period beginning at the end of any fiscal quarter of the Company
during which a Terms Agreement is entered into;
(g) to pay all expenses, fees and excise taxes (other than transfer taxes
and fees and disbursements of counsel for the Underwriters except as set forth
under Section 3 hereof or (iv) below) in connection with (i) the preparation and
filing of the Registration Statement, each related preliminary prospectus, the
Prospectus and any documents incorporated by reference therein at or after the
date thereof and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers as
required by applicable law, (ii) the issue, sale, and delivery of the Purchased
Securities, (iii) the printing of this Agreement, any agreement among
underwriters, any statements of information, the opinions and letters referred
to in subsections (a) and (b) of Section 4 hereof and the Indenture and the
furnishing of copies thereof to the Underwriters, (iv) the qualification of the
Purchased Securities for offering and sale and determination of their
eligibility for investment under state laws as aforesaid (including the legal
fees and disbursements of counsel for the Underwriters and all filing fees) and
the printing and furnishing of copies of the "Blue Sky Survey" to the
Underwriters and to dealers, (v) the rating of the Purchased Securities by
investment rating agencies and (vi) the performance of the Company's other
obligations hereunder;
Exhibit 1.1 3
(h) to furnish to you as early as practicable a copy of the latest
available unaudited interim consolidated financial statements, if any, which
have been read by the independent public accountants referred to in Section 4(c)
hereof as stated in their letter to be furnished pursuant to such Section, any
such financial statements to be so furnished no later than two full business
days prior to the date of such letter;
(i) to furnish to you two signed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto (including
all exhibits thereto and documents incorporated therein) and sufficient unsigned
copies of the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters; and
(j) before amending or supplementing the Registration Statement or the
Prospectus, or filing with the Commission during the period referred to in
subsection (e) of this Section 2 any document pursuant to Section 13, 14 or
15(d) of the Securities Exchange Act of 1934, as amended (herein, together with
the rules and regulations of the Commission thereunder, collectively referred to
as the "Exchange Act"), to furnish to you a copy of each such proposed
amendment, supplement or document.
3. REIMBURSEMENT OF UNDERWRITERS' EXPENSES: If the Underwriters' Securities
are not delivered for any reason other than the termination of this agreement
pursuant to Section 5 hereof or the default by one or more of the Underwriters
in its or their obligations to purchase Underwriters' Securities pursuant to any
Terms Agreement, the Company shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the fees and expenses of their
counsel.
4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS: The several obligations of the
Underwriters to purchase and pay for any issue of Underwriters' Securities under
any Terms Agreement are subject to the following conditions:
(a) That, at the time of purchase, you shall receive the signed opinions of
Xxxxx Xxxx LLP, counsel for the Company, and of the General Counsel of the
Company, or of an Associate General Counsel, in form satisfactory to your
counsel, addressed to the Underwriters and dated the time of purchase (with
conformed or reproduced copies thereof for each of the other Underwriters), as
indicated below.
(i) The opinion of Xxxxx Xxxx LLP is to state in substance that:
(A) the Company and its wholly-owned subsidiary, Anheuser-Xxxxx,
Incorporated, a Missouri corporation ("ABI"), have been duly
incorporated and are validly existing and in good standing under the
laws of their respective jurisdictions of incorporation, and have all
power and authority necessary to own their properties and conduct the
businesses in which they are engaged;
(B) this Agreement and the Terms Agreement have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, except as rights to indemnification
provided herein may be unenforceable under applicable laws;
(C) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and (assuming that
they have been duly authorized, executed and delivered by the
purchasers thereunder) are valid and binding agreements of the Company;
(D) the Indenture has been duly authorized, executed and delivered
by the Company and is a valid instrument legally binding upon the
Company in accordance with its terms; the Purchased Securities have
been duly authorized; the Underwriters' Securities (assuming they have
been signed by the appropriate officers of the Company, the facsimile
seal of the Company has been affixed thereto or imprinted thereon and
they have been duly authenticated by the Trustee, in accordance with
the Indenture, which assumptions such counsel need not verify by an
inspection of the Underwriters' Securities) have been duly issued and
constitute legal, valid and binding obligations of the Company; the
Contract Securities (assuming that they will have been similarly
signed, that the facsimile seal of the Company will have been affixed
thereto or imprinted thereon and that they
Exhibit 1.1 4
will have been duly authenticated by the Trustee, as aforesaid), when
issued and delivered against payment as provided in the Delayed
Delivery Contracts, will have been duly issued and will constitute
legal, valid and binding obligations of the Company; and the Purchased
Securities are, and the Contract Securities will be, entitled to the
benefits provided by the Indenture; provided, however, that (a) the
enforceability of the Indenture, the Underwriters' Securities and the
Contract Securities may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and (b)
rights of acceleration and the availability of equitable remedies
thereunder may be limited by equitable principles of general
applicability;
(E) the Purchased Securities, the Delayed Delivery Contracts and
the Indenture conform in all material respects as to legal matters with
the statements concerning them in the Prospectus;
(F) the contracts or other documents incorporated by reference in
the Registration Statement (the "Incorporated Documents") (other than
the financial statements, related schedules and other financial and
statistical data included therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied
as to form in all material respects with the requirements of the
Exchange Act;
(G) the Registration Statement and the Prospectus (other than the
financial statements, related schedules and other financial and
statistical data included therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the Indenture complies in all material
respects with the Trust Indenture Act of 1939, as amended;
(H) no approval by any governmental or regulatory authority is
required in connection with the consummation of the transactions
contemplated by this Agreement other than registration of the Purchased
Securities under the Act and qualification of the Indenture under the
Trust Indenture Act of 1939, as amended, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Purchased Securities are being offered;
(I) the Registration Statement is effective under the Act, and no
proceedings for a stop order are pending or, to the best of such
counsel's knowledge, threatened under the Act; and
In addition, such counsel shall state that such counsel has participated in
the preparation of the Registration Statement and Prospectus and although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to the matters referred to
under subheadings (E) and (G) of this subsection (a)), on the basis of the
foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel which lead it to believe that either the Registration
Statement or the Prospectus, each as of the date of the Terms Agreement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements, related schedules and other financial
and statistical data included in the Registration Statement or Prospectus).
(ii) The opinion of the General Counsel of the Company, or of an
Associate General Counsel, is to state in substance that:
(A) there are no contracts or other documents required to be
included among the Incorporated Documents or filed as exhibits to the
Incorporated Documents or the Registration Statement other than those
incorporated by reference or filed as required;
(B) to the best of such counsel's knowledge, there is no
litigation or any governmental proceeding pending or threatened against
the Company or any of its subsidiaries which would
Exhibit 1.1 5
affect the transactions contemplated by this Agreement or is required
to be disclosed in the Registration Statement or Prospectus which is
not disclosed and correctly summarized therein; and
(C) neither the Registration Statement nor the Prospectus, each as
of the date of the Terms Agreement, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading (it
being understood that such counsel need express no opinion with respect
to the financial statements, related schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
(b) That, at the time of purchase, the Underwriters shall receive the
favorable opinion of its counsel, dated the time of purchase, as to the matters
referred to in subheadings (B), (C), (D), (E) and (G) of subsection (a)(i) of
this Section 4.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company, counsel for
the Company, representatives of the independent accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to matters referred to under
subheadings (E) and (G) of subsection (a)(i) of this Section 4), on the basis of
the foregoing (relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come to the
attention of such counsel which lead such counsel to believe that either the
Registration Statement or the Prospectus, each as of the date of the Terms
Agreement, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading (it being understood that such counsel need
express no comment with respect to the financial statements, related schedules
and other financial and statistical data included in the Registration Statement
or Prospectus).
(c) That, at the time of purchase, you shall receive a signed letter from
Price Waterhouse LLP, independent public accountants, dated the time of
purchase, substantially in the form heretofore furnished to you and in substance
satisfactory to you, addressed to the Underwriters (with conformed or reproduced
copies thereof for each of the other Underwriters) with respect to the financial
statements and certain financial information contained in or incorporated by
reference into the Registration Statement and the Prospectus.
(d) That, prior to the time of purchase, (i) no stop order with respect to
the effectiveness of the Registration Statement shall have been issued under the
Act or proceedings therefor pending or threatened; (ii) the Registration
Statement shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and (iii) the Prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
other than any statement contained in, or any matter omitted from, the
Registration Statement or the Prospectus in reliance upon, and in conformity
with, information furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such Underwriter
in the Registration Statement or Prospectus.
(e) That, between the time of execution of the Terms Agreement and the time
of purchase, in your opinion no material adverse change or any development
involving a prospective material adverse change in the condition of the Company
and its subsidiaries, taken as a whole (financial or otherwise), shall have
taken place (other than as referred to in or contemplated by the Registration
Statement and Prospectus).
(f) That the Company shall perform such of its obligations under this
Agreement which are to be performed by the terms hereof at or before the time of
purchase.
Exhibit 1.1 6
(g) That the Company shall, at the time of purchase, deliver to you (with
reproduced or conformed copies thereof for each of the other Underwriters) a
signed certificate of two of its executive officers stating that, between the
time of execution of the Terms Agreement and the time of purchase, no material
adverse change or any development involving a prospective material adverse
change in the condition of the Company and its subsidiaries, taken as a whole
(financial or otherwise), shall have taken place (other than as referred to in
or contemplated by the Registration Statement and Prospectus) and also covering
the matters set forth in subsections (d) and (f) of this Section 4.
(h) That the Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
5. TERMINATION OF TERMS AGREEMENT: Any Terms Agreement may be terminated,
prior to the related time of purchase, by you or by any group of Underwriters
which has agreed to purchase in the aggregate at least 50% of the Underwriters'
Securities contemplated in such Terms Agreement if, in your judgment or in the
judgment of any such group of Underwriters, there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as to make it impracticable to market the
Securities contemplated in such Terms Agreement.
The obligations of the several Underwriters under any Terms Agreement shall
also be subject to termination in your absolute discretion if, at any time prior
to the related time of purchase, trading in securities on the New York Stock
Exchange shall have been suspended or minimum prices shall have been established
on the New York Stock Exchange, or if a banking moratorium shall have been
declared either by the United States or New York State authorities, or if the
United States shall have declared war in accordance with its constitutional
processes.
If you or any group of Underwriters elects to terminate any Terms Agreement
as provided in this Section 5, the Company and each other Underwriter shall be
notified promptly by delivery, telex, telefax or other customary manner of
communication.
If the sale to the Underwriters of the Underwriters' Securities, as
contemplated in any Terms Agreement, is not carried out by the Underwriters for
any reason permitted hereunder or if such sale is not carried out because the
Company shall be unable to comply with any of the terms hereof, the Company
shall not be under any obligation or liability under this Agreement or such
Terms Agreement (except to the extent provided in Sections 2(g), 3 and 7(c)
hereof) and the Underwriters shall be under no obligation or liability to the
Company under this Agreement or such Terms Agreement (except to the extent
provided in Section 7(e) hereof) or to one another hereunder.
6. INCREASE IN UNDERWRITERS' COMMITMENTS: If any Underwriter shall default
in its obligation to take up and pay for the Purchased Securities to be
purchased by it under any Terms Agreement and if the principal amount of
Purchased Securities which all Underwriters so defaulting shall have so failed
to take up and pay for does not exceed 10% of the total principal amount of
Purchased Securities agreed to be purchased pursuant to such Terms Agreement,
the non-defaulting Underwriters shall take up and pay for (in addition to the
principal amount of Purchased Securities they are obligated to purchase pursuant
to such Terms Agreement) the principal amount of Purchased Securities agreed to
be purchased by all such defaulting Underwriters, as hereinafter provided. Such
Purchased Securities shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Purchased Securities shall be taken up and paid for by
all non-defaulting Underwriters pro rata in proportion to the principal amount
of Purchased Securities they have agreed to purchase under such Terms Agreement.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Purchased Securities under any Terms Agreement unless all of the
Underwriters' Securities under any such Terms Agreement are purchased by the
Exhibit 1.1 7
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval).
If a new underwriter or underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five full business days in order
that necessary changes in the Registration Statement and Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any underwriter substituted under this Section 6.
7. WARRANTIES AND REPRESENTATIONS OF AND INDEMNITY BY THE COMPANY AND THE
UNDERWRITERS:
(a) The Company warrants and represents in connection with each offering of
Purchased Securities that the Registration Statement has become effective, that
the Registration Statement and the Prospectus fully comply and as of the date of
the Terms Agreement in respect of such Purchased Securities will fully comply
with the provisions of the Act, and, in the case of the Incorporated Documents,
with the Exchange Act, and that neither contains or as of the date of such Terms
Agreement will contain any untrue statement of a material fact or omits or as of
the date of such Terms Agreement will omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that the Company makes no warranty or representation with
respect to any statement contained in, or any matter omitted from, the
Registration Statement or the Prospectus in reliance upon and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to such Underwriter in the
Registration Statement or Prospectus. The Company warrants and represents that
the Incorporated Documents, at the time they were filed with the Commission,
complied in all material respects with the requirements of the Exchange Act, and
any additional documents deemed to be incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3 under the Act will, when they are
filed with the Commission, comply in all material respects with the requirements
of the Exchange Act and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
are made, not misleading.
(b) The Company warrants and represents that the Purchased Securities, when
issued in accordance with this agreement, the relevant Terms Agreement and the
Indenture, will be duly issued and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture.
(c) The Company agrees to indemnify, defend and hold harmless each
Underwriter, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or controlling
person may incur under the Act or the Exchange Act or otherwise, insofar as such
loss, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof) or in a Prospectus (the term Prospectus for
the purpose of this Section 7(c) being deemed to include any preliminary
prospectus, the Prospectus and the Prospectus as amended or supplemented), or
arises out of or is based upon any omission or alleged omission to state a
material fact required to be stated in either such Registration Statement or
Prospectus or necessary to make the statements made therein not misleading;
provided, however, that the indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, expense, liability or claim purchased the
Purchased Securities which are the subject thereof (or to the benefit of any
person controlling such Underwriter) if the Prospectus corrected any such
alleged untrue statement or omission and if such
Exhibit 1.1 8
Underwriter failed to send or give a copy of the Prospectus to such person at or
prior to the written confirmation of the sale of such Purchased Securities to
such person. The foregoing indemnification shall not cover any such loss,
expense, liability or claim, however, which arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or in such Prospectus or arises out
of or is based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or Prospectus or necessary to make such information not misleading.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or any controlling person of that
Underwriter.
If any action is brought against an Underwriter or controlling person in
respect of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter shall promptly notify the Company in
writing or by telephone, confirmed in writing, of the institution of such action
and the Company shall assume the defense of such action, including the
employment of counsel and payment of expenses. Such Underwriter or controlling
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of such
Underwriter or such controlling person unless the employment of such counsel
shall have been authorized in writing by the Company in connection with the
defense of such action or the Company shall not have employed counsel to have
charge of the defense of such action or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to the Company (in
which case the Company shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the Company; provided, however, the
Company shall not be obligated to pay the fees and expenses of more than one
such counsel (which shall be selected by you) for the indemnified parties.
Anything in this paragraph to the contrary notwithstanding, the Company shall
not be liable for any settlement of any such claim or action effected without
its written consent. The Company's indemnity agreement contained in this Section
7(c) and its warranties and representations contained in this agreement or
contained in certificates of officers of the Company submitted pursuant hereto
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Underwriter or controlling person, and shall survive any
termination of this Agreement or the Terms Agreement or the issuance, sale and
delivery of the Purchased Securities. The Company agrees promptly to notify the
Underwriters of the commencement of any litigation or proceedings against the
Company or any of its officers or directors in connection with the issuance and
sale of the Purchased Securities or the Registration Statement or Prospectus.
(d) Each Underwriter warrants and represents that the information furnished
in writing by or on behalf of such Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus with reference
to such Underwriter does not contain an untrue statement of a material fact and
does not omit to state a material fact in connection with such information
required to be stated in the Registration Statement or the Prospectus or
necessary to make such information not misleading.
(e) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers and any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act from and against any loss, expense, liability or claim (including
the reasonable cost of investigation) which, jointly or severally, the Company
or any such person may incur under the Act or the Exchange Act or otherwise,
insofar as such loss, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof), or in the Prospectus (the
Exhibit 1.1 9
term Prospectus for the purpose of this Section 7(e) being deemed to include any
preliminary prospectus, the Prospectus and the Prospectus as amended or
supplemented if the Company shall furnish to the Underwriters an amended
Prospectus or amendments or supplements to the Prospectus after the date of any
Terms Agreement), or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or Prospectus or necessary to make
such information not misleading. The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
If any action is brought against the Company or any such person in respect
of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing or by telephone, confirmed in writing, of the institution
of such action and such Underwriter shall assume the defense of such action,
including the employment of counsel and payment of expenses. The Company or such
person shall have the right to employ its or his own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the Company
or such person unless the employment of such counsel shall have been authorized
in writing by such Underwriter in connection with the defense of such action or
such Underwriter shall not have employed counsel to have charge of the defense
of such action or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by such Underwriter; provided, however, such
Underwriter shall not be obligated to pay the fees and expenses of more than one
such counsel (which shall be selected by the Company) for the indemnified
parties. Anything in this paragraph to the contrary notwithstanding, no
Underwriter shall be liable for any settlement of any such claim or action
effected without the written consent of such Underwriter. The indemnity
agreement on the part of each Underwriter contained in this Section 7(e) shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or such person, and shall survive any termination of this
Agreement or the Terms Agreement or the issuance, sale and delivery of the
Purchased Securities. Each Underwriter agrees promptly to notify the Company of
the commencement of any litigation or proceedings against such Underwriter in
connection with the issuance and sale of the Purchased Securities or the
Registration Statement or Prospectus.
8. PARTIES AT INTEREST: The agreement herein set forth has been and is made
solely for the benefit of the Underwriters and the Company, and the controlling
persons, directors and officers referred to in Section 7 hereof, and their
respective successors, assigns, executors and administrators, and no other
person (including a purchaser, as such purchaser, from any of the Underwriters
of any of the Purchased Securities) shall acquire or have any right under or by
virtue of this Agreement.
9. COUNTERPARTS: This instrument may be signed by the parties in
counterparts which together shall constitute one and the same agreement between
the parties and shall become effective at such time as each of the parties shall
have signed such counterparts and shall have notified the other party thereof.
10. CONSTRUCTION: This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
Exhibit 1.1 10
If the foregoing correctly sets forth the understanding between the Company
and you, please so indicate in the space provided below for the purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
ANHEUSER-XXXXX COMPANIES, INC.
By:
-----------------------------------
Treasurer
[UNDERWRITER(S)]
By:
-----------------------------------
Exhibit 1.1 11
SCHEDULE I
TERMS AGREEMENT
[TITLE OF PURCHASED SECURITIES]
[date]
ANHEUSER-XXXXX COMPANIES, INC.
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Dear Sirs:
Anheuser-Xxxxx Companies, Inc., a Delaware corporation (the "Company"), and
______________ have entered into an Underwriting Agreement (the "Underwriting
Agreement"), dated _____________, relating to the issuance from time to time by
the Company of its debt securities under an indenture (the "Indenture"), dated
as of __________________, 199__, between the Company and ____________________,
as Trustee. This Terms Agreement, relating to the Purchased Securities referred
to below, is being entered into pursuant to the Underwriting Agreement.
Capitalized terms used herein, not otherwise defined, have the meanings given
them in the Underwriting Agreement.
________________________________ and the several other underwriters named
in Schedule A annexed hereto (the "Underwriters") understand that the Company
proposes to issue and sell $______________ aggregate principal amount of [title
of Purchased Securities] (the "Purchased Securities"). Subject to the terms,
conditions, representations and warranties set forth or incorporated by
reference herein, the Company agrees to sell to the Underwriters and the
Underwriters agree to purchase from the Company the Purchased Securities at
____% of the principal amount thereof plus accrued interest from
________________. The Prospectus Supplement with respect to the Purchased
Securities is dated ____________________ and includes the Prospectus dated
____________________.
The Underwriters will pay for such Purchased Securities upon delivery
thereof in New York, New York at 10:00 A.M. (New York time) on
__________________ (the "Closing Date") by wire transfer of immediately
available funds, or at such other time on the Closing Date as shall be agreed
upon by the Company and the Underwriters.
The Purchased Securities shall be issued in book-entry form and shall have
the following terms:
(a) Interest: ___% per annum
(b) Maturity:
(c) Initial Public Offering Price: % of the principal amount of the
Purchased Securities plus accrued
interest from _______________, if any.
(d) Interest Payment Dates: __________ and __________,
commencing _____________
(e) Regular Record Dates: ____________ and ____________
(f) [Optional Redemption: The Purchased Securities will be
subject to redemption at any time on or
after ________________ at the option of
the Company, in whole or in part,
pursuant to the redemption provisions
of the Indenture, at Redemption Prices
equal to the percentages set forth
below of the principal amount to be
redeemed for the respective 12-month
periods
Exhibit 1.1 12
beginning ____________ of the years
indicated, together in each case with
accrued interest to the Redemption
Date:
and thereafter at 100% of the principal
amount thereof, together with accrued
interest to the Redemption Date.]
All provisions contained in the Underwriting Agreement are incorporated by
reference herein in their entirety and shall be deemed to be part of this
Agreement to the same extent as if such provisions had een set forth in full
herein.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
This instrument may be signed by the parties in counterparts which together
shall constitute one and the same agreement between the parties and shall become
effective at such time as each of the parties shall have signed such
counterparts and shall have notified the other party thereof.
Please confirm your agreement herewith by having an authorized officer sign
a copy of this Agreement in the space provided below.
Very truly yours,
----------------------------------------
as Representative
Accepted and Agreed to as of
the Date First Above Written:
ANHEUSER-XXXXX COMPANIES, INC.
By:
-----------------------------------
Exhibit 1.1 13
SCHEDULE II
DELAYED DELIVERY CONTRACT
[Date]
ANHEUSER-XXXXX COMPANIES, INC.
Xxx Xxxxx Xxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Anheuser-Xxxxx Companies,
Inc. (the Company), and the Company agrees to sell to the undersigned,
$_______________
principal amount of the Company's (state title of issue) (the Securities)
offered by the Company's Prospectus dated ______________ and a Prospectus
Supplement dated _____________ receipt of copies of which is hereby
acknowledged, at a purchase price of ___% of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract.
The undersigned agrees to purchase such Securities in the principal amounts
and on the delivery dates (the Delivery Dates) set forth below:
Delivery Principal Plus Accrued
Date Amount Interest From:
------------------------- ------------------------- --------------------------
------------------------- ------------------------- --------------------------
------------------------- ------------------------- --------------------------
------------------------- ------------------------- --------------------------
Payment for the Securities which the undersigned has agreed to purchase on
each Delivery Date shall be made to the Company or its order by certified or
official bank check in immediately available funds at the Corporate Trust Office
of _________________ (or at such other place as the undersigned and the Company
shall agree) at 11:00 A.M., New York City Time, on such Delivery Date upon
issuance and delivery to the undersigned of the Securities to be purchased by
the undersigned on such Delivery Date in such authorized denominations and
registered in such names as the undersigned may designate by written or
telegraphic communications addressed to the Company not less than five full
business days prior to such Delivery Date.
The obligation of the Company to sell and deliver, and of the undersigned
to take delivery of and make payment for, Securities on each Delivery Date shall
be subject to the conditions that (1) the purchase of
Exhibit 1.1 14
Securities to be made by the undersigned shall not at the time of delivery be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (2) the Company shall have sold, and delivery shall have taken
place, to Underwriters of such principal amount of the Securities as is to be
sold and delivered to them.
Promptly after completion of the sale and delivery to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by copies of the opinions of counsel for the
Company delivered to the Underwriters.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under this contract.
The undersigned represents and warrants that (a) as of the date of this
contract, the undersigned is not prohibited under the laws of the jurisdictions
to which the undersigned is subject from purchasing the Securities hereby agreed
to be purchased and (b) the undersigned does not contemplate selling the
Securities which it has agreed to purchase hereunder prior to the Delivery Date
therefor.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other. This contract shall be
governed by and construed in accordance with the laws of the State of New York.
This contract may be executed in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
It is understood that the acceptance of any Delayed Delivery Contract is in
the Company's sole discretion and, without limiting the foregoing, need not be
on a first-come, first-served basis. If the contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so signed.
Very truly yours,
----------------------------------------
By:
------------------------------------
----------------------------------------
----------------------------------------
Address
Accepted, as of the date first above written
Anheuser-Xxxxx Companies, Inc.
By:
----------------------------------------
Exhibit 1.1 15
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed
are as follows:
(Please print.)
Telephone No.
Name (Including Area Code) Department
------------------------- ------------------------- --------------------------
Exhibit 1.1 16
