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EXHIBIT 1.2
[ ] SHARES
KEEBLER FOODS COMPANY
COMMON STOCK ($0.01 PAR VALUE)
FORM OF SUBSCRIPTION AGREEMENT
London, England
January [ ], 1998
To: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL
SWISS BANK CORPORATION, ACTING THROUGH ITS DIVISION SBC WARBURG
DILLON READ
c/o: CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED ("CSFBL")
Xxx Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Dear Sirs:
1. Introductory. The stockholders listed in Schedule B hereto (the
"Selling Stockholders") propose severally to sell (the "International
Offering") to the several Managers named in Schedule A hereto (the "Managers")
an aggregate of [ ] outstanding shares (the "International Firm
Securities") of the Common Stock, $0.01 par value per share (the "Securities")
of Keebler Foods Company, a Delaware corporation (the "Company"), and also
propose to sell to the Managers and the U.S. Underwriters (as defined) an
option, exercisable by CSFBC (as defined below), for an aggregate of not more
than [ ] additional outstanding shares (the "Optional Securities") of
the Company's Securities as set forth below. The International Firm Securities
and the Optional Securities that may be sold to the Managers (together with the
Optional Securities that may be sold to the U.S. Underwriters in the United
States and Canada, the "Optional Securities") are herein collectively called
the "International Securities".
It is understood that the Company and the Selling Stockholders are
concurrently entering into an Underwriting Agreement, dated the date hereof
(the "Underwriting Agreement"), with certain United States underwriters listed
in Schedule A thereto (the "U.S. Underwriters"), for whom Credit Suisse First
Boston Corporation ("CSFBC"), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and SBC Warburg Dillon Read
Inc. are acting as representatives (the "U.S. Representatives"), relating to
the concurrent offering and sale of an aggregate of [ ] shares of
Securities (the "U.S. Firm Securities") in the United States and Canada
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(the "U.S. Offering"), which together with the Optional Securities that may be
sold to the U.S. Underwriters in the United States and Canada are hereinafter
called the "U.S. Securities". The International Firm Securities and the U.S.
Firm Securities are collectively referred to as the "Firm Securities". The
International Securities and the U.S. Securities are collectively referred to
as the "Offered Securities". To provide for the coordination of their
activities, the Managers and the U.S. Underwriters have entered into an
Agreement between U.S. Underwriters and Managers which permits them, among
other things, to sell the Offered Securities to each other for purposes of
resale.
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Managers that:
(i) A registration statement on Form S-1 (No. 333-42075)
relating to the Offered Securities, including a form of prospectus,
has been filed with the Securities and Exchange Commission (the
"Commission"). The registration statement contains two prospectuses
to be used in connection with the offering and sale of the Offered
Securities: the U.S. prospectus, to be used in connection with the
U.S. Offering, and the international prospectus, to be used in
connection with the International Offering. The international
prospectus is identical to the U.S. prospectus except for the front
and back covers, the "Table of Contents" and related text, the
information appearing under "Subscription and Sale" on pages Alt-4 to
Alt-6 and the deletion of the information under "Notice to Canadian
Residents" on pages 54 to 55 of the U.S. prospectus and except that
certain information has been reordered in the international
prospectus. The registration statement either (A) has been declared
effective under the Securities Act of 1933, as amended (the "Act"),
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
(the "initial registration statement") has been declared effective,
either (A) an additional registration statement (the "additional
registration statement") relating to the Offered Securities may have
been filed with the Commission pursuant to Rule 462(b) ("Rule 462(b)")
under the Act and, if so filed, has become effective upon filing
pursuant to such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial registration
statement and, if applicable, the additional registration statement or
(B) xxxxxx additional registration statement is proposed to be filed
with the Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and upon such filing the Offered
Securities will all have been duly registered under the Act pursuant
to the initial registration statement and such additional registration
statement. If the Company does not propose to amend the initial
registration statement or, if an additional registration statement has
been filed and the Company does not propose to amend it, and if any
post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of
this Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "Effective
Time" with respect to the initial registration statement or, if filed
prior to the execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised
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CSFBL that it does not propose to amend such registration statement,
the date and time as of which such registration statement, or the most
recent post-effective amendment thereto (if any) filed prior to the
execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (B) if the Company has advised CSFBL 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 CSFBL 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 hereinafter referred to collectively as the
"Registration Statements" and individually as a "Registration
Statement". The form of U.S. prospectus, together with the form of
international prospectus, relating to the International 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.
(ii) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement:
(A) on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission (the "Rules and Regulations") and did not include any
untrue statement of a material fact or omit to state any material fact
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required to be stated therein or necessary to make the statements
therein not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement
conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration Statement each
conforms, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included,
each Registration Statement and the Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and none of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements
of the Act and the Rules and Regulations, none of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do
not apply to statements in or omissions from a Registration Statement
or the Prospectus based upon written information furnished to the
Company by any Manager through CSFBL specifically for use therein, it
being understood and agreed that the only such information is that
described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), results of operations, business or
prospects of the Company and its subsidiaries taken as a whole (a
"Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly
incorporated and is a validly existing corporation in good standing
under the laws of the jurisdiction of its incorporation, with
appropriate power and authority to own its properties and conduct its
business as described in the Prospectus; and each subsidiary of the
Company is duly qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to so qualify would not have,
individually or in the aggregate, a Material Adverse Effect; all of
the issued and outstanding capital stock of each subsidiary of the
Company has been duly authorized and validly issued and is fully paid
and nonassessable; and, except as disclosed in the Prospectus, the
capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and
defects.
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(v) The Offered Securities and all other outstanding shares
of capital stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and, except as
disclosed in the Prospectus, the stockholders of the Company have no
preemptive rights with respect to the Securities.
(vi) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Manager or U.S. Underwriter for a brokerage commission, finder's
fee or other like payment with respect to the sale of the Offered
Securities.
(vii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(viii) The Offered Securities have been approved for listing
subject to notice of issuance on The New York Stock Exchange ("NYSE").
(ix) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement or the Underwriting
Agreement in connection with the sale of the Offered Securities,
except such as have been obtained and made under the Act and the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act") and such as may be required under state securities laws.
(x) The execution, delivery and performance of this
Agreement and the Underwriting Agreement, and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of (A) any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, (B) any agreement or instrument to which
the Company or any such subsidiary is a party or by which the Company
or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or (C) the charter or
by-laws of the Company or any such subsidiary, except, in the cases of
(A) and (B), where such breach, violation or default, individually or
in the aggregate, would not have a Material Adverse Effect.
(xi) Each of this Agreement and the Underwriting Agreement
has been duly authorized, validly executed and delivered by the
Company.
(xii) Except as disclosed in the Prospectus, the Company and
its subsidiaries have good and marketable title to all real properties
and all other
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properties and assets owned by them, in each case free from
liens,encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made
thereof by them; and except as disclosed in the Prospectus, the
Company and its subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that would,
individually or in the aggregate, have a Material Adverse Effect.
(xiii) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit that, if determined adversely to the Company or
any of its subsidiaries, individually or in the aggregate, could be
expected to have a Material Adverse Effect.
(xiv) No labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent
that could be expected to have a Material Adverse Effect.
(xv) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "intellectual property rights") necessary to conduct
the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could be expected to
have a Material Adverse Effect.
(xvi) Except as disclosed in the Prospectus, neither the
Company nor any of its subsidiaries is in violation of any statute,
any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal
or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "environmental laws"),
owns or operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is
subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim, individually or in the
aggregate, could be expected to have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead
to such a claim.
(xvii) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the
Company, any of its subsidiaries or any of their respective properties
that, if determined adversely to the Company or any of its
subsidiaries, individually or in the aggregate, could be expected to
have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under
this Agreement or the Underwriting Agreement, or which are otherwise
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material in the context of the sale of the Offered Securities; and, to
the Company's knowledge, no such actions, suits or proceedings are
threatened or contemplated.
(xviii) The financial statements included in each
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis; the schedules included in
each Registration Statement present fairly the information required to
be stated therein; and the assumptions used in preparing the pro forma
financial statements included in each Registration Statement and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the
proper application of those adjustments to the corresponding
historical financial statement amounts.
(xix) Except as disclosed in the Prospectus, since the date
of the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries individually, or taken
as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(xx) The Company is not and, after giving effect to the
offering and sale of the Offered Securities, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(b) Each Selling Stockholder, severally and not
jointly, represents and warrants to, and agrees with, the several
Managers that:
(i) Such Selling Stockholder is duly incorporated (if such
Selling Stockholder is a corporation) and validly existing and, to the
extent such concept exists in the relevant jurisdiction, in good
standing under the laws of the jurisdiction of its incorporation.
(ii) Each of this Agreement and the Underwriting Agreement
has been duly authorized, executed and, to the extent such concept
exists in the relevant jurisdiction, delivered by such Selling
Stockholder.
(iii) The execution and delivery by such Selling Stockholder
of, and the performance by such Selling Stockholder of its obligations
under, this Agreement and the Underwriting Agreement, will not
contravene any provision of applicable law, or the organization
documents of such Selling Stockholder (if such Selling Stockholder is
a corporation), or any agreement or other instrument binding upon such
Selling Stockholder or any of its assets or
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any judgment, order or decree of any governmental body, agency or
court having jurisdiction over such Selling Stockholder or any of its
assets, except where such contravention would not have, individually
or in the aggregate, a Material Adverse Effect, and no consent,
approval, authorization, or order of, or qualification or filing with,
any governmental agency or body or any court is required to be
obtained or made by such Selling Stockholder for the performance by
such Selling Stockholder of its obligations under this Agreement or
the Underwriting Agreement, except (A) such as have been obtained or
made, (B) such as may be required by the securities or Blue Sky laws
of the various states of the United States of America in connection
with the offer and sale of the Offered Securities in the United States
of America and (C) such as may be required by the securities laws of
any jurisdiction outside the Untied States of America.
(iv) Such Selling Stockholder has, and on each Closing Date
hereinafter mentioned will have, valid unencumbered title to the
Offered Securities to be sold by such Selling Stockholder on such date
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement and the Underwriting
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be sold by such Selling Stockholder.
(v) Upon delivery of the Offered Securities to be sold by
such Selling Stockholder pursuant to this Agreement and the
Underwriting Agreement and payment therefor as contemplated by this
Agreement and the Underwriting Agreement, marketable title to the
Offered Securities will pass to the Managers free and clear of any
security interests, claims, liens, equities and other encumbrances,
other than security interests, liens, equities or other encumbrances
arising solely from the actions of the Underwriters.
(vi) There are no material agreements or arrangements
relating to the Company or its subsidiaries to which such Selling
Stockholder, or to the best of such Selling Stockholder's knowledge,
to which any direct or indirect stockholder of such Selling
Stockholder is a party, which are required to be described in the
Registration Statements or the Prospectus or to be filed as exhibits
thereto that are not so described or filed.
(vii) (a) Each Registration Statement, when such Registration
Statement became effective, did not contain and each such Registration
Statement, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (b) each Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules
and regulations of the Commission thereunder and (c) the Prospectus
does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the foregoing representations and warranties apply only to
the extent that any statements or omissions in each Registration
Statement or the Prospectus are
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based upon information relating to such Selling Stockholder and any
direct or indirect stockholder of such Selling Stockholder furnished
to the Company in writing by such Selling Stockholder expressly for
use therein.
3. Purchase, Sale and Delivery of Offered Securities. On the basis
of the representations, warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to the Managers, and each Manager agrees,
severally and not jointly, to purchase from each Selling Stockholder, at a
purchase price of $[ ] per share, that number of International Firm
Securities (rounded up or down, as determined by CSFBC in its discretion, in
order to avoid fractions) obtained by multiplying the number of International
Firm Securities set forth opposite the name of such Selling Stockholder in
Schedule B hereto by a fraction the numerator of which is the number of
International Firm Securities set forth opposite the name of such Manager in
Schedule A hereto and the denominator of which is the total number of
International Firm Securities.
Each of the Selling Stockholders will deliver the International Firm
Securities to CSFBL for the accounts of the Managers, against payment of the
purchase price in U.S. dollars in Federal (same day) funds by official bank
check or checks or wire transfer to an account at a bank acceptable to CSFBL
drawn to the order of [ ] at the office of Cravath, Swaine & Xxxxx
("Underwriters' Counsel"), at 10:00 a.m., New York time, on [ ],
1998, or at such other time not later than seven full business days thereafter
as CSFBL and the Selling Stockholders determine, such time being herein
referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, as amended, the 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 U.S. Offering and the International Offering. The certificates
for the International Firm Securities so to be delivered will be in definitive
form, in such denominations and registered in such names as CSFBL requests and
will be made available for checking and packaging at the above office of
Underwriters' Counsel at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company and
the Selling Stockholders from time to time not more than 30 days subsequent to
the date of the Prospectus, the Managers may purchase all or less than all of
the Optional Securities at the purchase price per Security to be paid for the
International Firm Securities. Each of the Selling Stockholders agree,
severally and not jointly, to sell to the Managers the respective numbers of
Optional Securities obtained by multiplying the number of Optional Securities
specified in such notice by a fraction the numerator of which is the number of
shares set forth opposite the names of such Selling Stockholders in Schedule B
hereto under the caption "Number of Optional Securities to be Sold" and the
denominator of which is the total number of Optional Securities (subject to
adjustment by CSFBL to eliminate fractions). Such Optional Securities shall be
purchased from each Selling Stockholder for the account of each Manager and
U.S. Underwriter in the same proportion as the number of International Firm
Securities set forth opposite such Manager's name bears to the total number of
International Firm Securities and the number of U.S. Firm Securities set forth
opposite such U.S. Underwriter's name bears to the total number of U.S. Firm
Securities (subject to adjustment by CSFBL to eliminate fractions) and may be
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purchased by the Managers 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 International Firm Securities and the
U.S. Firm Securities previously have been, or simultaneously are, sold and
delivered. The right to purchase the Optional Securities or any portion
thereof may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by CSFBC to
the Selling Stockholders.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. Each of the Selling
Stockholders will deliver the Optional Securities being purchased on each
Optional Closing Date to CSFBL for the accounts of the several Managers,
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 acceptable to
CSFBL drawn to the order of [ ], at the above office of Underwriters' Counsel.
The certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered
in such names as CSFBL requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the above
office of Underwriters' Counsel at a reasonable time in advance of such
Optional Closing Date.
4. Offering by Managers. It is understood that the several Managers
propose to offer the International Securities for sale to the public as set
forth in the Prospectus.
In connection with the distribution of the International Securities,
the Managers, through a stabilizing manager, may over-allot or effect
transactions on any exchange, in any over-the-counter market or otherwise which
stabilize or maintain the market prices of the International Securities at
levels other than those which might otherwise prevail, but in such event and in
relation thereto, the Managers will act for themselves and not as agents of the
Company, and any loss resulting from over-allotment and stabilization will be
borne, and any profit arising therefrom will be beneficially retained, by the
Managers. Such stabilizing, if commenced, may be discontinued at any time.
5. Certain Agreements of the Company. The Company agrees with the
several Managers 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 CSFBL, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company
will advise CSFBL promptly of any such filing pursuant to Rule 424(b).
If the Effective Time of the Initial Registration
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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
Manager or U.S. Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBL.
(b) The Company will advise CSFBL 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 CSFBL's prior consent (which will not be
unreasonably withheld); and the Company will also advise CSFBL
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission
of any stop order proceedings in respect of a Registration Statement
and will use its best efforts to prevent the issuance of any such stop
order and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection
with sales by any U.S. Underwriter, Manager 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
CSFBL 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 CSFBL's consent to, nor the Managers'
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.
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(e) The Company will furnish to the Managers copies of each
Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus and so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Manager or
dealer, the International Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
CSFBL reasonably requests. The Prospectus shall be so furnished on or
prior to 3:00 p.m., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Managers all such
documents.
(f) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as
CSFBL designates and will continue such qualifications in effect so
long as required for the distribution; provided, that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action
which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) No action has been or, prior to the completion of the
distribution of the Offered Securities, will be taken by the Company
in any jurisdiction outside the United States and Canada that would
permit a public offering of the Offered Securities, or possession or
distribution of the International Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus issued in
connection with the offering of the Offered Securities, or any other
offering material, in any country or jurisdiction where action for
that purpose is required.
(h) During the period of 5 years hereafter, the Company will
furnish to CSFBL and, upon request, to each of the other Managers, as
soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will
furnish to CSFBL (i) as soon as available, a copy of each report and
any definitive proxy statement of the Company filed with the
Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information
concerning the Company as CSFBL may reasonably request.
(i) For a period of 180 days after the date of the initial
public offering of the Offered Securities (the "Lockup Period"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional
shares of its Securities or securities convertible into or
exchangeable or exercisable for any shares of its Securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFBC,
except issuances of Securities pursuant to the conversion or exchange
of convertible or exchangeable securities or the exercise of warrants
or options, in each case outstanding on the date hereof, grants of
employee stock options pursuant to the terms of a plan in effect on
the date hereof, issuances of Securities pursuant to the
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exercise of such options or issuances of Securities pursuant to the
Company's dividend reinvestment plan. Notwithstanding the provisions
of this subsection (h), the Company may file, but may not offer, sell
or otherwise dispose of any securities during the Lockup Period
pursuant to, a registration statement in connection with (A) the
exercise by Artal Luxembourg S.A. ("Artal") of its demand registration
rights under the Artal Stock Purchase Agreement (the "Artal
Agreement"), dated as of [ ], 1998, among Artal, Flowers Industries,
Inc. ("Flowers") and the Company or (B) the exercise of any related
incidental registration rights by Bermore, Limited ("Bermore") under
the Bermore Stock Purchase Agreement (the "Bermore Agreement"), dated
as of [ ], 1998, among Bermore, Artal, Flowers and the Company.
The Company agrees with the several Managers and the U.S. Underwriters
that the Company will pay all expenses incident to the performance of its
obligations and the obligations of the Selling Stockholders under this
Agreement, for any filing fees and other expenses (including fees and
disbursements of counsel) incurred in connection with qualification of the
Offered Securities for sale under the laws of such jurisdictions as CSFBL
designates and the printing of memoranda relating thereto, for any fees
incident to listing the Offered Securities on the NYSE, for the filing fee
incident to, and the filing fee and the reasonable fees and disbursements of
counsel to the Managers in connection with, the review by the 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 any
transfer taxes on the sale of the Offered Securities to the Managers and for
expenses incurred in printing and distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the Managers.
Each Selling Stockholder agrees, during the Lockup Period, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company or
securities convertible into or exchangeable or exercisable for any shares of
Securities, or publicly disclose the intention to make any such offer, sale,
pledge or disposition, without the prior written consent of CSFBC.
Notwithstanding the provisions of this paragraph, the Company may file, but may
not offer, sell or otherwise dispose of any securities during the Lockup Period
pursuant to, a registration statement in connection with (A) the exercise by
Artal of its demand registration rights under the Artal Agreement or (B) the
exercise of any related incidental registration rights by Bermore under the
Bermore Agreement.
6. Conditions of the Obligations of the Managers. The obligations
of the several Managers to purchase and pay for the International Firm
Securities on the First Closing Date and the Optional Securities to be
purchased on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders herein, to the accuracy of the
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statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Managers 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 Coopers & Xxxxxxx L.L.P. in the form agreed upon and set
forth in Section 6(a) of the Underwriting Agreement.
(b) 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 CSFBL. 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 Manager or U.S. Underwriter, or shall have
occurred at such later date as shall have been consented to by CSFBL.
If the Effective Time of the Initial Registration Statement is prior
to the execution and delivery of this Agreement, the Prospectus shall
have been filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Stockholder, the Company or the Managers, shall be contemplated by
the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (A) a change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of
CSFBL, be likely to prejudice materially the success of the proposed
issue, sale or distribution of the International Securities, whether
in the primary market or in respect of dealings in the secondary
market, or (B)(i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of CSFBL, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public
announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
suspension or
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limitation of trading in securities generally on the NYSE, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal or New York authorities; or (v) any outbreak
or escalation of major hostilities in which the United States is
involved, any declaration of war by the United States Congress or any
other substantial national or international calamity or emergency if,
in the judgment of CSFBL, 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 International Securities.
(d) The Managers shall have received an opinion, dated such
Closing Date, of Winston & Xxxxxx, counsel for the Company, in the
form agreed upon and set forth in Annex I to the Underwriting
Agreement.
(e) The Managers shall have received the opinion, dated such
Closing Date, of each of Xxxxxxx Xxxxxxx & Xxxxxxxx, U.S. counsel for
Artal, Xxxxxx & Xxxxxxxxx, Luxembourg counsel for Artal, Battle
Xxxxxx, U.S. counsel for Bermore, and Xxxxxxx Xxxxxxxx & Xxxxx,
Bermuda counsel for Bermore, in the form agreed upon and set forth in
Annexes II, III, IV and V, respectively, to the Underwriting
Agreement.
(f) The Managers shall have received from Cravath, Swaine &
Xxxxx, counsel for the Managers, such opinion or opinions, dated such
Closing Date, with respect to such matters as the Managers may
require, and the Selling Stockholders and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(g) The Managers shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement and the Underwriting 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 Manager or U.S. Underwriter; and, subsequent to the dates of the
most recent financial statements in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
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(h) The Managers shall have received a letter, dated such
Closing Date, of Coopers & Xxxxxxx L.L.P. which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to such Closing Date for the purposes
of this subsection.
(i) Each executive officer and director of the Company shall
have furnished to the U.S. Representatives a letter substantially in
the form of Exhibit A hereto and addressed to the U.S.
Representatives relating to sales of shares of Securities or any
securities convertible into or exercisable or exchangeable for such
Securities, and each such letter shall be in full force and effect on
the Closing Date.
(j) Each Selling Stockholder shall deliver to the U.S.
Representatives a properly completed and executed United States
Treasury Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof).
(k) On such Closing Date, the U.S. Underwriters shall have
purchased the U.S. Firm Securities or the Optional Securities, as the
case may be, pursuant to the Underwriting Agreement.
(l) The U.S. Representatives shall be reasonably satisfied
with the terms of all stockholders agreements and other agreements
between the Company and its stockholders, and all such agreements
contemplated in the Prospectus shall have been executed and delivered
by the parties thereto.
Each of the Selling Stockholders and the Company will furnish the Managers with
such conformed copies of such opinions, certificates, letters and documents as
the Managers reasonably request. CSFBL may in its sole discretion waive on
behalf of the Managers compliance with any conditions to the obligations of the
Managers hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Manager and each Selling Stockholder against
any losses, claims, damages or liabilities, joint or several, to which such
Manager or Selling Stockholder, as the case may be, may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Manager and each Selling Stockholder for any legal or other
expenses reasonably incurred by such Manager or Selling Stockholder, as the
case may be, in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company (i) by any Manager
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through CSFBL specifically for use therein, it being understood and agreed that
the only information furnished by any Manager consists of the information
described as such in subsection (c) below or (ii) by any Selling Stockholder
specifically for use therein.
(b) Each of the Selling Stockholders, severally and not jointly, will
indemnify and hold harmless each Manager against any losses, claims, damages or
liabilities, joint or several, to which such Manager may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information about such Selling Stockholder
(or any direct or indirect stockholders of such Selling Stockholder) furnished
to the Company by such Selling Stockholder specifically for use therein, and
will reimburse each Manager for any legal or other expenses reasonably incurred
by such Manager in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that such Selling Stockholder will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by a Manager through CSFBL
specifically for use therein, it being understood and agreed that the only such
information furnished by any Manager consists of the information described as
such in subsection (c) below.
(c) Each Manager will severally and not jointly indemnify and hold
harmless the Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Selling Stockholder may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Manager through CSFBL specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company and each Selling Stockholder in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses
are incurred, it being understood and agreed that the only such information
furnished by any Manager consists of the following information in the
Prospectus furnished on behalf of each Manager: the last paragraph at the
bottom of the cover page concerning the terms of the offering by the Managers,
the concession and reallowance figures appearing in the sixth paragraph under
the caption "Subscription and Sale", the over-allotments and
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stabilizing language appearing in the fourteenth paragraph under the caption
"Subscription and Sale", and the information contained in the fifteenth
paragraph under the caption "Subscription and Sale".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a), (b) or (c) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or
(c) above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Managers on the other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault
of the Company and the Selling Stockholders on the one hand and the Managers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Managers on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Selling Stockholders bear to the total
underwriting discounts and commissions received by the Managers. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company, the Selling Stockholders or the Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (e) shall be
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deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Manager 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 Manager 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 Managers' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and each Selling Stockholder under
this Section shall be in addition to any liability which the Company and such
Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Manager within the
meaning of the Act; and the obligations of the Managers under this Section
shall be in addition to any liability which the respective Managers may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
The maximum liability of each Selling Stockholder to indemnify or
contribute payments pursuant to this Section 7 shall not exceed the aggregate
proceeds (after deducting the Underwriters' discount) of the Offered Securities
(including the sale of shares on exercise of the over-allotment option, if any)
to such Selling Stockholder.
8. Default of Managers. If any Manager or Managers default in their
obligations to purchase Offered Securities hereunder on either the First
Closing Date or any Optional Closing Date and the aggregate number of shares
of Offered Securities that such defaulting Manager or Managers agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Managers are obligated to purchase on such Closing Date,
CSFBL may make arrangements satisfactory to the Selling Stockholders for the
purchase of such Offered Securities by other persons, including any of the
Managers, but if no such arrangements are made by such Closing Date the
non-defaulting Managers shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Managers agreed but failed to purchase on such Closing Date. If any
Manager or Managers 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 Managers are
obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBL and the Selling Stockholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Manager, the Company or the Selling Stockholders, except as provided in Section
9 (provided that if such default occurs with respect to Optional Securities
after the First Closing Date, this Agreement will not terminate as to the
International Firm Securities or any Optional Securities purchased prior to
such termination). As used in this Agreement,
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the term "Manager" includes any person substituted for a Manager under this
Section. Nothing herein will relieve a defaulting Manager from liability for
its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Selling Stockholders, of the Company or its officers and of
the several Managers set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or statement
as to the results thereof, made by or on behalf of any Manager, any Selling
Stockholder, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and
payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Managers 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, the Selling Stockholders and the
Managers 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 Managers is not consummated for
any reason other than solely because of the termination of this Agreement
pursuant to Section 8 or the occurrence of any event specified in Section
6(c)(A) or clause (iii), (iv), or (v) of Section 6(c)(B), the Company will
reimburse the Managers for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Managers, will be mailed, delivered or telexed and confirmed to
CSFBL at Xxx Xxxxx Xxxxxx, Xxxxxx X00 0XX England, Attention: Company
Secretary, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Xxxxxx X. X'Xxxxx, or, if sent to the Selling Stockholders or any of them, will
be mailed, delivered or telegraphed and confirmed to [ ] at [
]; provided, however, that any notice to a Manager pursuant to Section 7 will
be mailed, delivered or telexed and confirmed to such Manager.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives,
heirs and successors and the officers and directors and controlling persons
referred to in Section 7, and no other person will have any right or obligation
hereunder.
12. Representation of Managers. CSFBL will act for the several
Managers in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by CSFBL will be binding upon all the
Managers.
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
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STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Each of the Company and the Selling Stockholders hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Managers' understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof,
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whereupon it will become a binding agreement between and among the Selling
Stockholders, the Company and the several Managers in accordance with its
terms.
Very truly yours,
KEEBLER FOODS COMPANY,
by
-------------------------------
Name:
Title:
ARTAL LUXEMBOURG S.A.,
by
-------------------------------
Name:
Title:
BERMORE, LIMITED,
by
-------------------------------
Name:
Title:
23
23
The foregoing Subscription Agreement is
hereby confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL
SWISS BANK CORPORATION, ACTING THROUGH
ITS DIVISION SBC WARBURG DILLON READ
c/o CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
One Xxxxx Xxxxxx
Xxxxxx, Xxxxxxx X00 0XX
Each by its duly authorized attorney-in-fact
By CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
by
------------------------------------------
Name:
Title:
24
24
SCHEDULE A
NUMBER OF
INTERNATIONAL FIRM
SECURITIES TO BE
MANAGER PURCHASED
------- ----------------------
Credit Suisse First Boston (Europe) Limited . . . . . .
Xxxxxxx Xxxxx International . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. International. . . . . . . . . . .
Swiss Bank Corporation, acting through its division SBC
Warburg Dillon Read . . . . . . . . . . . . . . . . . .
Total . . . . . . . . . . . . . .
===
25
25
SCHEDULE B
NUMBER OF INTERNATIONAL
FIRM NUMBER OF OPTIONAL
SELLING STOCKHOLDER SECURITIES TO BE SOLD SECURITIES TO BE SOLD
-------------------- --------------------- ---------------------
Artal Luxembourg S.A.
Bermore, Limited
--------------- ---------------
Total . . . . . . .
=============== ===============
