Exhibit 1a1
UNDERWRITING AGREEMENT
[ ]
Fortune Brands, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") understand that Fortune Brands, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell $[ ] aggregate
principal amount of its [ ]% [ ] Due [ ] (the "Debt Securities" or
the "Offered Securities"). Subject to the terms and conditions set forth herein
or incorporated by reference herein, the Company hereby agrees to sell and the
underwriters named below (the "Underwriters") agree to purchase $[ ]
principal amount of the Debt Securities at [ ]% of the principal amount of
such Debt Securities and accrued interest from [ ], if any, to the date
of payment and delivery.
Principal Amount
Name of Underwriter of Debt Securities
------------------- ------------------
$
Upon delivery of such Offered Securities, the Underwriters will pay
for such Offered Securities at a closing to be held at the offices of the
Company at 0000 Xxxx Xxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxxx at [ ] [a.m.]
(New York time) on [ ], or at such other time, not later than [ ],
as shall be designated by the Manager.
The Debt Securities shall have the following terms:
Maturity: [ ], [ ]
Interest Rate: [ ]% per annum
Redemption Provisions: [ ]
Interest Payment Dates: [ ] and [ ],
commencing [ ], [ ]
(the Interest payable on
[ ] being in
respect of the period
commencing [ ])
Form and Denomination: Global Security held through
the book-entry facilities of
The Depository Trust Company
All the provisions (other than the provisions of Article VII)
contained in the document entitled Fortune Brands, Inc. Underwriting Agreement
Standard Provisions (Debt Securities and Warrants to Purchase Debt Securities )
dated [ ], 1999, a copy of which you have previously received, are
herein incorporated by reference in their entirety and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein. The term "Manager" as used therein shall mean [
] whose authority thereunder may be exercised by them jointly or by [
] alone.
Very truly yours,
[ ]
Acting severally and on behalf
of itself and the other
Underwriters referred to above
By ____________________________
[Name]
[Title]
Accepted:
FORTUNE BRANDS, INC.
By ____________________________
FORTUNE BRANDS, INC.
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT SECURITIES AND
WARRANTS TO PURCHASE DEBT SECURITIES)
[ ], 1999
From time to time, FORTUNE BRANDS, INC., a Delaware corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein.
The standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue and sell from time to time certain of
(a) its debt securities (the "Debt Securities") to be issued pursuant to the
provisions of an Indenture dated as of [ ], 1999, as supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., as Trustee
(the "Trustee") and (b) its Warrants (the "Debt Warrants") to purchase Debt
Securities (such Debt Securities to be purchasable through the exercise of Debt
Warrants being referred to herein as the "Debt Warrant Securities") to be
evidenced by warrant certificates (the "Warrant Certificates") and to be issued
pursuant to the provisions of the Debt Warrant Agreement identified in the
Underwriting Agreement. The Debt Securities may be convertible into Common
Stock, par value $3.125 per share, of the Company ("Common Stock") as provided
in or pursuant to the Indenture, and Preferred Share Purchase Rights (the
"Rights") may be delivered with Common Stock upon conversion of any convertible
Debt Securities. The Debt Securities and Debt Warrants to be sold pursuant to
this Agreement, but not the Debt Warrant Securities or the Common Stock or
Rights, if any, issuable or deliverable upon conversion of any convertible Debt
Securities, are collectively referred to herein as the "Offered Securities".
The Debt Securities and Debt Warrants will have or be of varying designations,
maturities, rates and times of payment of interest, selling prices, exercise
prices, conversion prices, expiration dates, redemption terms, currencies and
other terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") registration statements relating to the Debt Securities and Debt
Warrants and the shares of Common Stock and Rights, if any, issuable or
deliverable upon conversion of any convertible Debt Securities, has filed such
amendments thereto as may have been required to the date of the Underwriting
Agreement and has filed with, or mailed for filing to, or shall promptly
hereafter file with or mail for filing to, the Commission a prospectus
supplement specifically relating to the Offered Securities and the Debt Warrant
Securities, if any, pursuant to Rule 424 under the Securities Act of 1933. The
term "Registration Statement" means such registration statements as amended to
the date of the Underwriting Agreement. The term "Basic Prospectus" means the
prospectus included in the Registration Statement relating to the Debt
Securities and the Debt Warrants, as updated from time to time. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities and the Debt Warrant Securities,
if any, as filed with, or mailed for filing to, or as shall promptly hereafter
be filed with or mailed for filing to, the Commission pursuant to such Rule 424.
The term "preliminary prospectus" means a preliminary prospectus supplement
specifically relating to the Offered Securities and the Debt Warrant Securities,
if any, together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material, if any, incorporated by
reference therein.
The term "Underwriters' Securities" means the Offered Securities to be
purchased by the Underwriters herein. The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Exhibit A attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount and number of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance of Delayed Delivery Contracts.
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If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the principal amount and number of Contract Securities
shall be deducted from the principal amount and number of Offered Securities to
be purchased by the several Underwriters and the aggregate principal amount or
number of Offered Securities to be purchased by each Underwriter shall be
reduced pro rata in proportion to the principal amount or number, as the case
may be, of Offered Securities set forth opposite each Underwriter's name in the
Underwriting Agreement, except to the extent that the Manager determines that
such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Except as otherwise provided in this Article IV, payment for the
Underwriters' Securities shall be made by wire transfer to an account designated
by the Company in immediately available funds at the time, on the date and at
the place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities (other than Debt Securities in registered global form) registered in
such names and in such denominations as the Manager shall request in writing not
less than two full business days prior to the date of delivery and, in the case
of Underwriters' Securities that are Debt Securities in registered global form,
upon delivery to the Depositary identified in the Underwriting Agreement of a
single global Debt Security certificate, registered in the name of the
Depositary or a nominee thereof, for credit to the respective accounts of the
Depositary participants. The time and date of such payment and delivery with
respect to the Underwriters' Securities are herein referred to as the Closing
Date.
Delivery of any Underwriters' Securities that are (i) Debt Securities
in bearer form on the Closing Date shall be initially effected by delivery of a
single temporary
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global Debt Security without coupons (the "Global Debt Security") evidencing the
Offered Securities that are Debt Securities in bearer form and (ii) Debt
Warrants in bearer form shall be effected only by delivery of a single permanent
global Debt Warrant (the "Global Debt Warrant") evidencing the Offered
Securities that are Debt Warrants in bearer form, in each case to a common
depositary for Xxxxxx Guaranty Trust Company of New York, Brussels office, as
operator of the Euro-clear System ("Euro-clear"), and for Centrale de Livraison
de Valeurs Mobilieres S.A. ("CEDEL") for credit to the respective accounts at
Euro-clear or CEDEL of each Underwriter or such other accounts as each
Underwriter may direct. Any Global Debt Security or Global Debt Warrant shall be
delivered to the Manager not later than the Closing Date, against payment of
funds to the Company in the net amount due to the Company for such Global Debt
Security or Global Debt Warrant, as the case may be, by the method and in the
form set forth herein. The Company shall cause definitive Debt Securities in
bearer form to be prepared and delivered in exchange for such Global Debt
Security in such manner and at such time as may be provided in or pursuant to
the Indenture; provided, however, that the Global Debt Security shall be
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exchangeable for definitive Debt Securities in bearer form only on or after the
date specified for such purpose in the Prospectus. The Offered Debt Warrants
shall be evidenced only by a Global Debt Warrant until their expiration.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission and there
shall have been no material adverse change in the condition of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Registration Statement and the Prospectus; and the Manager shall have
received, on the Closing Date, a certificate, dated the Closing Date and
signed by an executive officer of the Company, to the foregoing effect.
Such certificate will also provide that the representations and warranties
of the Company contained herein are true and correct as of the Closing
Date. The officer making such certificate may rely upon the best of his
knowledge as to proceedings pending or threatened.
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(b) The Manager shall have received on the Closing Date an
opinion of Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B attached hereto.
(c) The Manager shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, dated the
Closing Date, to the effect set forth in Exhibit C attached hereto.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the Manager,
from PricewaterhouseCoopers LLP, independent certified public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, a copy of the
Registration Statement including exhibits and materials, if any,
incorporated by reference therein and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto as the Manager may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all
documents filed by the Company with the Commission subsequent to the date
of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934,
which are deemed to be incorporated by reference in the Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered, any event
5
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare and furnish, at its own expense, to
the Underwriters, either amendments or supplements to the Prospectus so
that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as the
Manager may designate; provided, however, that the Company shall not be
-------- -------
obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not qualified.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a twelve-
month period beginning after the date of the Underwriting Agreement and
ending at the end of a fiscal quarter of the Company, which shall satisfy
the provisions of Section 11(a) of the Securities Act of 1933 and the
applicable rules and regulations (including Rule 158) thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise dispose of any securities of the
Company substantially similar to the Offered Securities, without the prior
written consent of the Manager.
VII.
Each of the several Underwriters agrees with the Company that:
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(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or
sold, and during the restricted period will not offer or sell, Debt
Securities in bearer form to a person who is within the United States or
its possessions or to a United States person, and (ii) it has not delivered
and will not deliver within the United States or its possessions definitive
Debt Securities in bearer form that are sold during the restricted period;
(b) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer form
are aware that such Debt Securities may not be offered or sold during the
restricted period to a person who is within the United States or its
possessions or to a United States person, except as permitted by the D
Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with their
original issuance and if it retains Debt Securities in bearer form for its
own account, it will only do so in accordance with the requirements of U.S.
Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) with respect to each affiliate that acquires from it Debt
Securities in bearer form for the purpose of offering or selling such Debt
Securities during the restricted period, it either (i) repeats and confirms
the representations and agreements contained in clauses (a), (b) and (c) on
its behalf or (ii) agrees that it will obtain from such affiliate for the
Manager's benefit and the benefit of the Company the representations and
agreements contained in clauses (a), (b) and (c); and
(e) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Securities are to be distributed
through a selling group consisting of banks, brokers or dealers, the Manager
agrees that it shall cause each member of such selling group to enter into an
agreement that it will comply with this paragraph. Terms used in this paragraph
have the meanings given to them by the applicable
7
provisions of the U.S. Internal Revenue Code and regulations thereunder,
including the D Rules.
Each of the several Underwriters further agrees with the Company that:
(a) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and will not offer or sell at any time, Debt Warrants
in bearer form to a person who is within the United States or its
possessions or to a United States person, and (ii) it has not delivered and
will not deliver within the United States or its possessions Debt Warrants
in bearer form that are sold at any time;
(b) except to the extent permitted under the D Rules, (i) it has
not offered or sold, and during the restricted period will not offer or
sell, Debt Warrant Securities in bearer form to a person who is within the
United States or its possessions or to a United States person, and (ii) it
has not delivered and will not deliver within the United States or its
possessions definitive Debt Warrant Securities in bearer form that are sold
during the restricted period;
(c) it has and throughout the restricted period will have in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Warrants in bearer form or
Debt Warrant Securities in bearer form are aware that such Debt Warrants
may not be offered or sold at any time, and such Debt Warrant Securities
may not be offered or sold during the restricted period, to a person who is
within the United States or its possessions or to a United States person,
except as permitted by the D Rules;
(d) if it is a United States person, it is acquiring the Debt
Warrants in bearer form and any Debt Warrant Securities in bearer form for
purposes of resale in connection with their original issuance and if it
retains Debt Warrants in bearer form or Debt Warrant Securities in bearer
form for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(e) with respect to each affiliate that acquires from it Debt
Warrants in bearer form or Debt Warrant Securities in bearer form for the
purpose of offering or selling such Debt Warrants at any time or offering
or selling such Debt Warrant Securities during the restricted period, it
either (i) repeats and
8
confirms the representations and agreements contained in clauses (a), (b),
(c) and (d) on its behalf or (ii) agrees that it will obtain from such
affiliate for the Manager's benefit and the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and (d);
and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Warrants may be
offered, sold, resold or delivered.
If Underwriters' Securities that are Debt Warrants are to be distributed through
a selling group consisting of banks, brokers or dealers, the Manager agrees that
it shall cause each member of such selling group to enter into an agreement that
it will comply with this paragraph. Terms used in this paragraph have the
meanings given to them by the applicable provisions of the U.S. Internal Revenue
Code and regulations thereunder, including the D Rules.
VIII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated by reference in the Prospectus complied or will comply
when so filed in all material respects with such Act and the rules and
regulations thereunder, (ii) each part of the registration statement (including
the documents incorporated by reference therein), filed with the Commission
pursuant to the Securities Act of 1933 relating to the Debt Securities and Debt
Warrants when such part became effective, did 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, (iii) each
preliminary prospectus, if any, filed pursuant to Rule 424 under the Securities
Act of 1933 complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act of 1933 and the
applicable rules and regulations thereunder and (v) the Registration Statement
and the Prospectus do 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 in order to make the statements therein, in the
light of the circumstances under which they
9
were made, not misleading; except that these representations and warranties do
not apply to (a) statements or omissions in the Registration Statement, any
preliminary prospectus or the Prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein and (b) those
parts of the Registration Statement which constitute the Statement of
Eligibility under the Trust Indenture Act of 1939 on Form T-1 of the Trustee.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article VI hereof and as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided, however, that the foregoing indemnity with respect to
preliminary prospectuses shall not inure to the benefit of any Underwriter (or
to the benefit of any person controlling such Underwriter) from whom the person
asserting any such losses, claims, damages or liabilities purchased Offered
Securities if a copy of the Prospectus or the Prospectus as then amended or
supplemented (if the Prospectus has been amended or supplemented prior to the
written confirmation of the sale of such Offered Securities to such person) had
not been sent or given to such person at or prior to such written confirmation
and the untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in such Prospectus or Prospectus as amended
or supplemented, as the case may be.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information relating to
such Underwriter furnished in writing by such Underwriter expressly for use in
the Registration Statement, any preliminary prospectus or the Prospectus.
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In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and the representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to local counsel) for all
such indemnified parties, and that all such fees shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Manager in the case
of parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect (i) the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities and (ii) the relative fault of the Company on
the one hand and of the
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Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other 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
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VIII were determined by pro
rata allocation or by any other method of allocation which does not take account
of the considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VIII, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act of 1933) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VIII are several, in
proportion to the respective principal amount or number, as the case may be, of
Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and
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in full force and effect regardless of (i) any termination of this Agreement,
(ii) any investigation made by any Underwriter or on behalf of any Underwriter
or any person controlling any Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of and payment for any of the Offered Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriters, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis the
effect of which on the United States or the international financial markets is
such as to make it, in the judgment of the Manager, impracticable to market the
Offered Securities.
X.
If any one or more of the Underwriters shall fail or refuse to
purchase Underwriters' Securities which it or they have agreed to purchase
pursuant to the Underwriting Agreement, and the aggregate amount of
Underwriters' Securities which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Underwriters' Securities, the other Underwriters shall
be obligated severally in the proportions which the amounts of Underwriters'
Securities set forth opposite their names in the Underwriting Agreement bear to
the aggregate amount of Underwriters' Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the amount of Underwriters' Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this Article X by an amount in excess of one-ninth of such
amount of Underwriters' Securities without the written consent of such
Underwriter. If any Underwriter or
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Underwriters shall fail or refuse to purchase Underwriters' Securities and the
aggregate amount of Underwriters' Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of the Underwriters'
Securities and arrangements satisfactory to the Manager and the Company for the
purchase of such Underwriters' Securities, are not made within 36 hours after
such default, this Agreement, or the provisions hereof applicable to the sale
and purchase of the Underwriters' Securities, will terminate without liability
on the part of any non-defaulting Underwriter or of the Company. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under the Underwriting Agreement.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York.
14
Exhibit A
DELAYED DELIVERY CONTRACT
[ ]
Fortune Brands, Inc.
0000 Xxxx Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxxx 00000-0000
Dear Sirs:
The undersigned hereby agrees to purchase from FORTUNE BRANDS, INC., a
Delaware corporation (the "Company"), and the Company agrees to sell to the
undersigned the Company's securities described in Schedule I annexed hereto (the
"Securities"), offered by the Company's Prospectus dated [ ] and
Prospectus Supplement dated [ ], receipt of copies of which is hereby
acknowledged, at the purchase price stated in Schedule I and on the further
terms and conditions set forth in this contract. The undersigned does not
contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and number on the delivery dates as set forth in Schedule I.
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date".
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 wire
transfer to an account designated by the Company in immediately available funds,
at [10:00 A.M.] (New York time) on the Delivery Date, upon delivery to the
undersigned of the Securities to be purchased by the undersigned on the Delivery
Date, in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date, except that
payment for any Securities that are Debt Securities in registered global form
A-1
shall be so made on the Delivery Date upon delivery to the Depositary named in
the Prospectus Supplement referred to above of a single global Debt Security
certificate, registered in the name of such Depositary or a nominee thereof, for
credit to the account of such Depositary participant as the undersigned may so
designate.
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of 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 the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of 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 a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
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.
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.
If this 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, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
A-2
This contract shall be governed by and construed in accordance with
the internal laws of the State of New York.
Very truly yours,
____________________________
(Purchaser)
By _________________________
_________________________
(Title)
_________________________
_________________________
(Address)
Accepted:
FORTUNE BRANDS, INC.
By__________________________
Name:
Title:
A-3
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
---- -------------------- ----------
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
_______________________ _______________________ _______________________
A-4
SCHEDULE I
----------
Securities:
----------
Principal amount or Number to be Purchased:
------------------------------------------
Purchase Price:
--------------
Delivery Dates:
--------------
A-5
Exhibit B
Opinion of Xxxxxxxxxx & Xxxxx LLP,
Counsel for the Company
The opinion of Xxxxxxxxxx & Xxxxx LLP, counsel for the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled Fortune
Brands, Inc. Underwriting Agreement Standard Provisions (Debt Securities and
Warrants to Purchase Debt Securities) shall be to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware;
(ii) each of the following subsidiaries of the Company: ACCO
World Corporation, Acushnet Company, Xxx Xxxx Brands Worldwide, Inc. and
MasterBrand Industries, Inc. has been duly incorporated and is validly
existing under the laws of its state of incorporation;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and has been duly qualified under the Trust Indenture Act of 1939,
as amended;
(iv) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company;
(v) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture or the Debt
Warrant Agreement, if any, and delivered and paid for (A) by the
Underwriters pursuant to the Underwriting Agreement or by institutional
investors, if any, pursuant to Delayed Delivery Contracts, in the case of
the Offered Securities, and (B) upon exercise of Debt Warrants pursuant to
the Debt Warrant Agreement, in the case of the Debt Warrant Securities,
will be valid and binding obligations of the Company and will be entitled
to the benefits of, as the case may be, the Indenture or the Debt Warrant
Agreement;
B-1
(vi) the shares of Common Stock initially issuable upon
conversion of any convertible Debt Securities have been duly authorized and
reserved for such issuance, the shares of Common Stock, if any, issued upon
conversion of any convertible Debt Securities in accordance with their
terms will be validly issued, fully paid and non-assessable and the
accompanying Rights, if any, have been duly authorized and will be validly
issued;
(vii) the Registration Statement and the Prospectus, as amended
or supplemented, if applicable (except for the financial statements and
other financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion), comply as to
form in all material respects with the Securities Act of 1933 and the rules
and regulations thereunder;
(viii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, except as rights to indemnity and contribution thereunder
may be limited by applicable law;
(ix) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and binding
agreements of the Company;
(x) the issuance of the Offered Securities and the Debt
Warrant Securities, if any, in accordance with, as the case may be, the
Indenture and the Debt Warrant Agreement, if any, and the sale thereof in
accordance with the Underwriting Agreement, and the issuance of the shares
of Common Stock initially issuable upon conversion of any convertible Debt
Securities and the accompanying Rights, if any, do not and will not
contravene the Certificate of Incorporation or By-laws of the Company or
any provision of any indenture, mortgage or other agreement known to such
counsel by which the Company is bound;
(xi) no authorization from any regulatory board, agency or
instrumentality having jurisdiction over the Company (other than
registration under the Securities Act of 1933 and qualification of the
Indenture under the Trust Indenture Act of 1939, as amended, and
qualification or other authorization under state securities or "blue sky"
laws, as to which such counsel need express no opinion) is required for the
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performance by the Company of the Underwriting Agreement;
(xii) the Indenture and the Debt Warrant Agreement, if any, and
the Offered Securities, the Debt Warrant Securities, if any, and, if
applicable, the capital stock of the Company and the Rights conform to the
descriptions thereof in the Prospectus;
(xiii) such counsel is of the opinion that each document, if
any, filed pursuant to the Securities Exchange Act of 1934 (except as to
financial statements and other financial and statistical data contained or
incorporated therein, as to which such counsel need not express any
opinion) and incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with such Act and the rules and
regulations thereunder; and
(xiv) such counsel believes that, based upon their examination
and participation in conferences, but without independent verification
except as specified (except for the financial statements and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion), each part of
the Registration Statement (including the documents incorporated by
reference therein) filed with the Commission pursuant to the Securities Act
of 1933 relating to the Offered Securities and the Debt Warrant Securities,
if any, when such part became effective, did 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, and that (except for the financial statements and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion) the Registration
Statement and the Prospectus on the date of the Underwriting Agreement did
not, and the Prospectus, as amended or supplemented, if applicable, on the
Closing Date does not, contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering its opinion, Xxxxxxxxxx & Xxxxx LLP may limit its opinion
to matters of the laws of the United States of America and the State of New York
and the General Corporation Law of the State of Delaware.
B-3
Exhibit C
Opinion of Xxxxx Xxxx & Xxxxxxxx,
Counsel for the Underwriters
The opinion of Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, to
be delivered pursuant to Article V, paragraph (c) of the document entitled
Fortune Brands, Inc. Underwriting Agreement Standard Provisions (Debt Securities
and Warrants to Purchase Debt Securities) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company and has been duly qualified under the Trust Indenture Act of 1939;
(ii) the Debt Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and is a valid and
binding agreement of the Company;
(iii) the Offered Securities and the Debt Warrant Securities, if
any, when executed and either authenticated or countersigned in accordance
with the provisions of, as the case may be, the Indenture or the Debt
Warrant Agreement, if any, and delivered and paid for (A) by the
Underwriters or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, in the case of the Offered Securities, and (B) upon
exercise of the Debt Warrants pursuant to the Debt Warrant Agreement, in
the case of the Debt Warrant Securities, will be valid and binding
obligations of the Company and will be entitled to the benefits of, as the
case may be, the Indenture and the Debt Warrant Agreement;
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding agreement
of the Company, except as rights to indemnity and contribution thereunder
may be limited by applicable law;
(v) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the
C-1
Company and are valid and binding agreements of the Company;
(vi) the statements in the Prospectus under "Description of Debt
Securities", "Description of Debt Warrants", "Description of Capital Stock"
and "Plan of Distribution", insofar as such statements constitute a summary
of the documents or proceedings referred to therein, fairly present the
information called for with respect to such documents and proceedings; and
(vii) such counsel (A) is of the opinion that the Registration
Statement and Prospectus, as amended or supplemented, if applicable (except
for the financial statements contained or incorporated by reference therein
and other financial data derived from such financial statements, as to
which such counsel need not express any opinion), comply as to form in all
material respects with the Securities Act of 1933 and the rules and
regulations thereunder and (B) believes that the Registration Statement and
the Prospectus (except for the financial statements contained or
incorporated by reference therein and other financial data derived from
such financial statements, as to which such counsel need not express any
belief) on the date of the Underwriting Agreement did not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading and that the
Prospectus (except as aforesaid), as amended or supplemented, if
applicable, on the Closing Date does not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that such counsel may state that their
opinion and belief is based upon their participation in the preparation of
the Registration Statement and the Prospectus and any amendments and
supplements thereto (other than the documents incorporated by reference
therein) and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
C-2
