Exhibit 1
XXXXXXX PURINA COMPANY
$360,000,000
____,000,000 STOCK APPRECIATION INCOME LINKED SECURITIES (SM)
___% EXCHANGEABLE NOTES DUE 2000
(SUBJECT TO EXCHANGE INTO SHARES OF COMMON STOCK,
PAR VALUE $.01 PER SHARE, OF INTERSTATE BAKERIES CORPORATION)
UNDERWRITING AGREEMENT
July 23, 1997
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO. INC.
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
SALOMON BROTHERS INC
As Representatives of the Several
Underwriters,
c/o Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
1. Introductory. Xxxxxxx Purina Company, a Missouri corporation (the
"Company"), proposes to issue and sell to you (the "Underwriters"), an aggregate
amount of SAILS (Stock Appreciation Income Linked Securities)
consisting of its __% Exchangeable Notes Due 2000, which are registered under
the registration statement referred to in Section 3(a) (referred to herein as
the "Firm SAILS"), in such amounts to each of the Underwriters as set forth in
Schedule A hereto. The SAILS will be issued under an Indenture, dated as of May
26, 1995, between the Company and The First National Bank of Chicago, as trustee
("Trustee"), as supplemented by a First Supplemental Indenture, dated as of
___________, 1997, between the Company and the Trustee (as supplemented from
time to time, the "Indenture"). In addition, the Underwriters will have the
option to purchase from the Company up to an additional SAILS (the "Option
SAILS"). The Firm SAILS and the Option SAILS, if purchased, are hereinafter
collectively referred to as the "SAILS."
In connection with the foregoing Interstate Bakeries Corporation, a
Delaware corporation ("IBC"), has filed with the Securities and Exchange
Commission (the "Commission") a Form S-3 registration statement with respect
to shares (the "IBC Firm Shares") of common stock of IBC, par value
$.01 per share ("IBC Common Stock"), plus an additional shares of IBC
Common Stock (the "IBC Option Shares") to the extent the Underwriters exercise
their over-allotment option with respect to
--------------------
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the SAILS, for sale by the Company as a selling stockholder (to the extent it
shall so elect to deliver IBC Common Stock to holders of the SAILS at maturity
thereof pursuant to the terms of the SAILS), which registration statement is
referred to in Section 2(a). The IBC Firm Shares and the IBC Option Shares, if
the Options SAILS are purchased, are hereinafter collectively referred to as the
"IBC Shares."
2. Representations and Warranties of IBC. IBC represents and
warrants to, and agrees with, the Underwriters and the Company that:
(a) IBC meets the requirements for the use of a Form S-3 under the
Securities Act of 1933, as amended (the "Act"). A registration statement on
Form S-3 (File No. 333-27961), including a preliminary form of prospectus,
relating to the IBC Shares has been filed with the Commission and either
(i) has been declared effective under the Act, and is not proposed to be
amended or (ii) is proposed to be amended by amendment or post-effective
amendment. If IBC does not propose to amend such registration statement and
if any post-effective amendment to such registration statement has been
filed with the Commission prior to the execution and delivery of this
Underwriting Agreement ("Agreement"), the most recent such amendment has
been declared effective by the Commission. For purposes of this Agreement,
"IBC Effective Time" means (i) if IBC has advised the Underwriters 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 (ii) if IBC
has advised the Underwriters 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
Commission. "IBC Effective Date" means the date of the IBC Effective Time.
Such registration statement, as amended at the Effective Time (including
all material incorporated by reference therein and including all
information (if any) deemed to be a part of such registration statement as
of the IBC Effective Time pursuant to Rule 430A(b) under the Act), is
hereinafter referred to as the "IBC Registration Statement" and the form of
prospectus relating to the IBC Shares attached to the Company Prospectus
(as hereinafter defined), as first filed with the Commission pursuant to
and in accordance with Rule 424(b) under the Act ("Rule 424(b)") or (if no
such filing is required) as included in the IBC Registration Statement,
including all material
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incorporated by reference in such prospectus, is hereinafter referred to as
the "IBC Prospectus." Copies of such registration statement and amendments
and of each related preliminary prospectus ("Preliminary IBC Prospectuses")
have been delivered to the Underwriters.
(b) If the IBC Effective Time is prior to the execution and delivery
of this Agreement: (i) on the IBC Effective Date, the IBC Registration
Statement conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission promulgated thereunder
("Rules and Regulations") and did not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii)
on the date of this Agreement, the IBC Registration Statement conforms, and
at the time of filing of the IBC Prospectus pursuant to Rule 424(b) and at
all times subsequent thereto up to and at the First Closing Date (as
defined below) or any Option Closing Date (as defined below), as the case
may be, the IBC Registration Statement and the IBC Prospectus and any
amendment or supplements thereto will conform in all material respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the IBC Effective Time is subsequent to the execution and delivery of
this Agreement: on the IBC Effective Date and at all times subsequent
thereto up to and at the First Closing Date or any Option Closing Date, as
the case may be, the IBC Registration Statement and the IBC Prospectus and
any amendments or supplements thereto will conform in all material respects
to the requirements of the Act and the Rules and Regulations, and neither
of such documents will include any untrue statement of a material fact or
will omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. The two preceding
sentences do not apply to statements in or omissions from the IBC
Registration Statement or the IBC Prospectus based upon written information
furnished to IBC by any Underwriter through Credit Suisse First Boston
Corporation ("CSFBC") or the Company specifically for use therein, it being
understood and agreed that the only such information is that described as
such in Section 10. The IBC Information (as defined herein) provided to the
Company for use in the Company Registration Statement (as defined herein)
and any amendments or supplements
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thereto, and the Company Prospectus (as defined herein) and any amendments
or supplements thereto does not include, or will not include, any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading. The Commission has not issued any order preventing or
suspending the use of any Preliminary IBC Prospectus or the IBC Prospectus.
(c) The documents incorporated by reference in the IBC Registration
Statement or the IBC Prospectus, when they became effective or were filed
with the Commission, as the case may be, under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), conformed, and any documents so
filed and incorporated before the First Closing Date, will, when they are
filed with the Commission, conform, in all material respects to the
requirements of the Act and the Exchange Act, as applicable, the Rules and
Regulations and the rules and regulations of the Commission under the
Exchange Act (the "Exchange Act Rules and Regulations").
(d) IBC and Interstate Brands Corporation ("Brands") have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation with full
corporate power and corporate authority to own, lease and operate their
respective properties and conduct their respective businesses as described
in the IBC Registration Statement, and IBC and Brands are duly qualified to
do business as foreign corporations and are in good standing in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires such qualification,
except where the failure to be so qualified would not have a material
adverse effect on the condition (financial or otherwise), earnings,
prospects or results of operations or business of IBC and Brands taken as a
whole (an "IBC Material Adverse Effect").
(e) The capital stock of IBC conforms in all material respects to the
statements relating thereto contained in the IBC Registration Statement and
the IBC Prospectus (and such statements correctly state the substance of
the instruments defining the capitalization of IBC in all material
respects); the IBC Shares and all of the issued shares of capital stock of
IBC have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the IBC
Prospectus; the form of certificate used to evidence
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IBC Common Stock is in due and proper form and otherwise complies with all
statutory requirements under the laws of the State of Delaware; except as
described in or contemplated by the IBC Prospectus, there are no
outstanding options, warrants or other rights for the issuance of, and
there are no commitments, plans or arrangements to issue any shares of
capital stock of IBC or any security convertible into, exercisable for or
exchangeable for any shares of capital stock of IBC; and, except as
described in or contemplated by the IBC Prospectus, all of the issued
shares of capital stock of each subsidiary of IBC have been duly and
validly authorized and issued and are fully paid, non-assessable and are
owned directly or indirectly by IBC, free and clear of all liens,
encumbrances, equities or claims.
(f) Except as set forth in or incorporated by reference in the IBC
Prospectus, there is not any pending or, to IBC's knowledge, any threatened
action, suit, claim or proceeding by or before any court or governmental
agency, authority or body or otherwise against IBC or any of its
subsidiaries or any of their respective officers or any of their respective
properties, assets or rights which would or could reasonably be expected to
have an IBC Material Adverse Effect or prevent consummation of the
transactions contemplated herein.
(g) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the execution,
delivery and performance of IBC of this Agreement or the consummation by
IBC of the transactions contemplated by this Agreement, except such as may
be required under the Act, the Rules and Regulations, the Exchange Act, the
Exchange Act Rules and Regulations or under state or other securities or
Blue Sky laws, rules or regulations.
(h) IBC has full legal right, corporate power and corporate authority
to enter into this Agreement and perform the transactions contemplated
hereby; this Agreement has been duly authorized, executed and delivered by
IBC and is a valid and binding agreement of IBC, enforceable against IBC in
accordance with its terms, except as the indemnification and contribution
provisions hereunder may be limited by applicable law and except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles.
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(i) The execution, delivery and performance of this Agreement and the
consummation of the transactions herein contemplated will not result in a
breach or violation of any of the terms and provision of, or constitute a
default under, (i) the charter or by-laws of IBC or any subsidiary of IBC;
(ii) any material indenture, mortgage, deed of trust, loan agreement, bond,
debenture, note or other evidence of indebtedness or any material lease,
contract or other agreement or instrument to which IBC or any subsidiary of
IBC is a party or by which it or any such subsidiary or any of their
respective properties may be bound; or (iii) any law or any order, rule or
regulation of any governmental agency or body or any court having
jurisdiction over IBC or any subsidiary of IBC or over the properties of
IBC or any such subsidiary.
(j) Except as described in the IBC Prospectus, there are no
contracts, agreements or understandings between IBC and any person granting
such person any preemptive right, co-sale right, right of first refusal or
right to require IBC to file a registration statement under the Act with
respect to any securities of IBC owned or to be owned by such person or to
require IBC to include such securities in the securities registered
pursuant to the IBC Registration Statement or in any securities being
registered pursuant to any other registration statement filed by IBC under
the Act.
(k) Deloitte & Touche LLP, who have audited the annual consolidated
financial statements, together with the related schedules and notes, of IBC
incorporated by reference as a part of the IBC Registration Statement, some
of which are included in the IBC Prospectus, are independent accountants
within the meaning of the Act and the Rules and Regulations; the audited
consolidated financial statements of IBC, together with the related notes,
forming part of the IBC Registration Statement and IBC Prospectus, fairly
present in all material respects the consolidated financial position and
the results of operations of IBC at the dates and for the periods to which
they apply; all audited consolidated financial statements of IBC, together
with the related schedules and notes, and all interim unaudited
consolidated financial information of IBC incorporated by reference as part
of the IBC Registration Statement have been prepared in accordance with
generally accepted accounting principles consistently applied through the
period involved, except as may be otherwise stated therein; the financial
data included in the IBC Registration Statement present fairly the
information shown therein and the historical financial information included
in such data has been compiled on a basis
7
substantially consistent with the financial statements incorporated by
reference therein; and no other financial statements or schedules or notes
are required to be included in the IBC Registration Statement.
(l) Subsequent to the respective dates as of which information is
given in the IBC Registration Statement and the IBC Prospectus, except as
described in or contemplated by the IBC Prospectus, there has not been or
occurred (i) any change in the business, property or assets described or
referred to in the IBC Registration Statement or the condition (financial
or otherwise), earnings, prospects or results of operations or business of
IBC which could have an IBC Material Adverse Effect, (ii) any transaction
which is material to IBC and its subsidiaries taken as a whole, except
transactions in the ordinary course of business, (iii) any obligation,
direct or contingent, incurred by IBC which is material to IBC and its
subsidiaries taken as a whole, except obligations incurred in the ordinary
course of business, (iv) any change in the capital stock or outstanding
indebtedness of IBC which is material to IBC and its subsidiaries taken as
a whole or (v) any issuance or granting of any right to acquire any
securities of IBC (other than grants of stock options to directors or
employees in the ordinary course).
(m) Neither IBC nor any of its subsidiaries (i) is in violation of
their respective charter or by-laws, (ii) is in default, and no event has
occurred which, with notice or lapse of time or both, would constitute a
breach or default, in the due performance or observance of any term,
covenant or condition contained in any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which they are parties
or by which they are bound or to which any of their respective properties
or assets are subject, (iii) is in violation of any law, ordinance,
governmental rule, regulation or court decree to which it or its property
or assets may be subject or have failed to obtain, comply with or maintain
the effectiveness of any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of their
respective property or to the conduct of their respective business except,
in the case of clauses (ii) and (iii), for those defaults, violations or
failures which, either individually or in the aggregate, would not or could
not reasonably be expected to have an IBC Material Adverse Effect.
(n) IBC is not required to be registered, and is not regulated, as an
"investment company" as such term
8
is defined under the Investment Company Act of 1940, as amended (the "1940
Act").
(o) IBC and its subsidiaries own or possess adequate rights to use
all material patents, patent rights, inventions, trade secrets, know-how,
trademarks, service marks, trade names and copyrights described or referred
to in the IBC Prospectus as owned or used by it or which are necessary for
the conduct of its business as described in the IBC Prospectus. IBC has not
received any notice of infringement of or conflict with asserted rights of
others with respect to any patents, patent rights, inventions, trade
secrets, know-how, trademarks, service marks, trade names or copyrights
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have an IBC Material Adverse Effect.
(p) IBC Common Stock is listed on the New York Stock Exchange
("NYSE"), and IBC has received no notice of any proceeding having the
purpose or effect of discontinuing such listing.
(q) IBC has not taken and will not take, directly or indirectly, any
action designed to, or which might reasonably be expected to, cause or
result in stabilization or manipulation of the price of the shares of IBC
Common Stock to facilitate the sale or resale of the SAILS (it being
understood that the parties hereto agree that the Repurchase Transaction
(as defined in the IBC Prospectus) shall not for purposes of this Agreement
be deemed to have such effect).
(r) IBC has not distributed and will not distribute any prospectus or
other offering materials in connection with the offering and sale of the
SAILS other than the IBC Preliminary Prospectus and the IBC Prospectus or
other material permitted by the Act.
3. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-27959) has
been filed with the Commission and has been declared effective under the
Act and either (i) is not proposed to be amended or (ii) is proposed to be
amended by a post-effective amendment. If the Company does not propose to
amend such registration statement and if any post-effective amendment to
such registration statement has been filed with the Commission prior to the
execution and delivery of this Agreement, the most recent such amendment
has been
9
declared effective by the Commission. For purposes of this Agreement,
"Company Effective Time" means (i) if the Company has advised you 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 (ii) if the
Company has advised you that it proposes to file a post-effective amendment
to such registration statement, the date and time as of which such
registration statement, as amended by such post-effective amendment is
declared effective by the Commission. "Company Effective Date" means the
date of the Company Effective Time. Such registration statement, as
amended at the Company Effective Time, including all material incorporated
by reference therein and including all information (if any) deemed to be a
part of such registration statement as of the Effective Time pursuant to
Rule 430A(b) under the Act, is hereinafter referred to as the "Company
Registration Statement" and the form of prospectus, including the
prospectus supplement, relating to the SAILS, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) under the Act,
including all material incorporated by reference in such prospectus, is
hereinafter referred to as the "Company Prospectus". Copies of such
registration statement and amendments and of each related preliminary
prospectus and prospectus supplement ("Preliminary Company Prospectuses")
have been delivered to the Underwriters.
(b) If the Company Effective Time is prior to the execution and
delivery of this Agreement: (i) on the Company Effective Date, the Company
Registration Statement conformed in all material respects to the
requirements of the Act, the Rules and Regulations and the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"), and did not include
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (ii) on the date of this Agreement, the Company
Registration Statement conforms, and at the time of filing of the Company
Prospectus pursuant to Rule 424(b) and at all times subsequent thereto up
to and at the First Closing Date or any Option Closing Date, as the case
may be, the Company Registration Statement and the Company Prospectus and
any amendments or supplements thereto will conform, in all material
respects to the requirements of the Act, the Rules and Regulations and the
Trust Indenture Act, and neither of such documents includes, or will
include, any untrue statement of a material fact or omits, or will omit, to
10
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. If the Company Effective Time is
subsequent to the execution and delivery of this Agreement, on the Company
Effective Date and at all times subsequent thereto up to and at the First
Closing Date or any Option Closing Date, as the case may be, the Company
Registration Statement and the Company Prospectus and any amendments or
supplements thereto will conform in all material respects to the
requirements of the Act, the Rules and Regulations and the Trust Indenture
Act, and neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
two preceding sentences do not apply to statements in or omissions from the
Company Registration Statement or the Company Prospectus based upon written
information furnished to the Company by IBC or any Underwriter through
CSFBC for use therein, it being understood and agreed that the only such
information is that described as such in Section 10. The Company
Information (as defined herein) provided to IBC for use in the IBC
Registration Statement and any amendments or supplements thereto and the
IBC Prospectus and any amendments or supplements thereto, does not include,
or will not include, any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The Commission has not issued any
order preventing or suspending the use of any Preliminary Company
Prospectus or the Company Prospectus.
(c) The Company and each of the Company's Significant Subsidiaries
(as hereinafter defined) have been duly incorporated and are validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation with full corporate power and
corporate authority to own, lease and operate their respective properties
and conduct then respective businesses as described in the Company
Registration Statement; and the Company and each of the Company's
Significant Subsidiaries are duly qualified to do business as foreign
corporations and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of then respective
businesses requires such qualification, except where the failure to be so
qualified would not have a material adverse effect on the condition
(financial or otherwise), earnings, prospects or results of operations or
business of the Company and the Company's Significant Subsidiaries taken as
a whole (a "Company Material Adverse Effect").
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(d) The documents incorporated by reference in the Company
Registration Statement or the Company Prospectus, when they became
effective or were filed with the Commission, as the case may be, under the
Exchange Act, conformed, and any documents so filed and incorporated before
the First Closing Date will, when they are filed with the Commission,
conform, in all material respects to the requirements of the Act and the
Exchange Act, as applicable, the Rules and Regulations and the Exchange Act
Rules and Regulations.
(e) The SAILS conform in all material respects to the statements
relating thereto contained in the Company Registration Statement and the
Company Prospectus (and such statements correctly state the substance of
the instruments defining the obligations of the Company in all material
respects).
(f) The Indenture has been duly authorized by the Company and the
SAILS to be purchased from the Company hereunder have been duly authorized
for issuance and sale to the Underwriters pursuant to this Agreement; the
Indenture has been duly qualified under the Trust Indenture Act; and the
Indenture, when the First Supplemental Indenture is duly executed and
delivered, and the SAILS, when they are duly executed, authenticated and
issued as contemplated hereby and by the Indenture and delivered against
payment therefor in accordance with the terms of this Agreement, will
constitute valid and legally binding obligations of the Company enforceable
in accordance with their respective terms subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other
similar laws affecting creditors' rights generally or by general equitable
principles.
(g) Except as set forth in or incorporated by reference in the Company
Prospectus, there is not any pending or, to the Company's knowledge any
threatened action, suit, claim or proceeding by or before any court or
governmental agency, authority or body or otherwise against the Company or
any of its subsidiaries or any of their respective officers or any of their
respective properties, assets or rights which would or could reasonably be
expected to have a Company Material Adverse Effect or prevent consummation
of the transactions contemplated herein.
(h) No consent, approval, authorization or order of, or filing with,
any governmental agency or body or any court is required for the execution,
delivery and performance of this Agreement and the Indenture in connection
with the issuance or sale of the SAILS by the Company or the consummation
by the Company of the
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transactions contemplated by this Agreement, except such as may be required
under the Act, the Rules and Regulations, the Exchange Act, the Exchange
Act Rules and Regulations, the Trust Indenture Act or under state or other
securities or Blue Sky laws, rules and regulations.
(i) The Company has full legal right, corporate power and corporate
authority to enter into this Agreement and perform the transactions
contemplated hereby; this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except as the indemnification and contribution provisions hereunder may be
limited by applicable law and except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other similar laws relating to or affecting creditors' rights
generally or by general equitable principles.
(j) The execution, delivery and performance of this Agreement and the
Indenture by the Company and the consummation of the transactions herein
and therein contemplated, including without limitation the issuance and
sale of the SAILS, will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) the charter or
by-laws of the Company or any subsidiary of the Company; (ii) any material
indenture, mortgage, deed of trust, loan agreement, bond, debenture, note
or other evidence of indebtedness or any material lease, contract, or other
agreement or instrument to which the Company or any subsidiary of the
Company is a party or by which it or any such subsidiary or any of their
respective properties may be bound; or (iii) any law or any order, rule or
regulation of any governmental agency to body or any court having
jurisdiction over the Company or any subsidiary of the Company or over the
properties of the Company or any such subsidiary.
(k) Except as described in the Company Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person any preemptive right, co-sale right, right of first
refusal or 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 the Company Registration Statement
or in any securities being registered pursuant to any other
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registration statement filed by the Company under the Act.
(l) Price Waterhouse LLP, who have audited the annual consolidated
financial statements, together with the related schedules and notes, of the
Company incorporated by reference as a part of the Company Registration
Statement, are independent accountants within the meaning of the Act and
the Rules and Regulations; the audited consolidated financial statements of
the Company, together with the related notes, forming part of the Company
Registration Statement and the Company Prospectus, fairly present the
consolidated financial position and the results of operations of the
Company at the respective dates and for the respective periods to which
they apply; all audited consolidated financial statements of the Company,
together with the related schedules and notes, and all interim unaudited
consolidated financial information of the Company incorporated by reference
as part of the Company Registration Statement have been prepared in
accordance with generally accepted accounting principals consistently
applied throughout the periods involved, except as may be otherwise stated
therein; the financial data included in the Company Registration Statement
present fairly the information shown therein and have been compiled on a
basis substantially consistent with the financial statements incorporated
by reference therein; and no other financial statements or schedules or
notes are required to be included in the Company Registration Statement.
(m) Subsequent to the respective dates as of which information is
given in the Company Registration Statement and the Company Prospectus,
there has not been or occurred (i) any change, nor any development or event
involving a prospective material adverse change in the business, property
or assets described or referred to in the Company Registration Statement,
or the condition (financial or otherwise), earnings, prospects or results
of operations or business of the Company which could have a Company
Material Adverse Effect, (ii) any transaction which is material to the
Company and its subsidiaries taken as a whole, except transactions in the
ordinary course of business, (iii) any obligation, direct or contingent,
incurred by the Company which is material to the Company and its
subsidiaries taken as a whole, except obligations incurred in the ordinary
course of business or (iv) any change in the capital stock or outstanding
indebtedness of the Company which is material to the Company and its
subsidiaries taken as a whole.
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(n) Neither the Company nor any of its subsidiaries (i) is in
violation of their respective charter or by-laws, (ii) is in default, and
no event has occurred which, with notice or lapse of time or both, would
constitute a breach or default, in the due performance or observance of any
term, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which they are
parties or by which they are bound or to which any of their respective
properties or assets are subject or (ii) is in violation of any law,
ordinance, governmental rule, regulation or court decree to which they or
their respective property or assets may be subject or have failed to
obtain, comply with or maintain the effectiveness of any license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of their respective property or to the conduct
of their respect businesses except, in the case of clauses (ii) and (iii),
for those defaults, violations or failures which, either individually or in
the aggregate, would not or could not reasonably be expected to have a
Company Material Adverse Effect.
(o) The Company is not regulated, and after giving effect to the
offering and sale of the SAILS and the application of the proceeds as
described in the Company Prospectus, will not be required to be registered,
as an "investment company" as such term is defined under the 1940 Act.
(p) The Company and its subsidiaries own or possess adequate rights
to use all material trademarks, service marks, trade names and copyrights
described or referred to in the Company Prospectus as owned or used by it
or which are necessary for the conduct of its business as described in the
Company Prospectus; the Company has not received any notice of infringement
of or conflict with asserted rights of others with respect to any patents,
patent rights, inventions, trade secrets, know-how, trademarks, service
marks, trade names or copyrights which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Company
Material Adverse Effect.
(q) The Company has not taken and will not take, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably be expected to cause or result in the stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the SAILS.
(r) The Company has not distributed and will not distribute any
prospectus or other offering materials
15
in connection with the offering and sale of SAILS other than the Company
Preliminary Prospectus and the Company Prospectus or other material
permitted by the Act.
4. Purchase, Sale and Delivery of SAILS. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $[ ] per SAILS, the respective
number of Firm SAILS set forth opposite the names of the Underwriters on
Schedule A hereto.
The Company shall deliver against payment of the purchase price the
Firm SAILS in the form of one or more permanent global SAILS in definitive form
(the "Firm Global SAILS") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent global SAILS will be held only in
book-entry form through DTC, except in the limited circumstances described in
the Company Prospectus. Payment for the Firm SAILS shall be made by the
Underwriters by wire transfer of same-day funds at a bank acceptable to CSFBC at
the New York City offices of Xxxxxxx Xxxxxxx & Xxxxxxxx (or at such other place
as may be agreed upon among the Underwriters and the Company), at 9:00 A.M., New
York time, on _____, 1997, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date," against delivery to the Trustee
as custodian for DTC of the Firm Global SAILS representing all of the Firm
SAILS. The Firm SAILS will be made available for checking at the office of
CSFBC or such other location as CSFBC may reasonably request at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC to the Company from time
to time not more than 30 days subsequent to the date of the Company Prospectus
(or, if such 30th day shall be a Saturday, Sunday or holiday, on the next
business day thereafter when the NYSE is open for trading), the Underwriters may
purchase all or less than all of the Option SAILS at the purchase price per SAIL
to be paid for the Firm SAILS. The Company agrees to sell to the Underwriters
and the Underwriters agree, severally and not jointly, to purchase from the
Company, the number of Option SAILS specified in such notice to the Company.
Such Option SAILS shall be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm SAILS.
The number of Option SAILS to be so purchased by each of the Underwriters upon
exercise of such option shall be the same proportion to the total number of
Option SAILS being purchased by each Underwriter pursuant to the exercise of
such option as the number of Firm SAILS purchased by such Underwriter (set forth
in Schedule A hereto) bears to the total number of Firm SAILS purchased by the
Underwriters,
16
adjusted by CSFBC in such a manner as to avoid fractional SAILS. No Option
SAILS shall be sold or delivered unless the Firm SAILS have been simultaneously
or were previously sold and delivered. The right to purchase the Option SAILS
or any portion thereof may be surrendered and terminated at any time upon notice
by CSFBC to the Company.
Each time for the delivery of and payment for the Option SAILS (each
such time herein referred to as an "Option Closing Date"), which may be the
First Closing Date (the First Closing Date and each Option Closing Date, if any,
being some times referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than seven full business days after written notice of
election to purchase Option SAILS is given. The Company will deliver, against
payment of the purchase price, the Option SAILS being purchased on each Option
Closing Date in the form of one or more permanent global SAILS in definitive
form (each, an "Option Global SAILS") deposited with the Trustee as custodian
for DTC and registered in the name of Cede & Co., as nominee for DTC. Payment
for such Option SAILS shall be made by the Underwriters by wire transfer of
same-day funds at a bank acceptable to CSFBC drawn to the order of the Company
at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx against delivery to the
Trustee as custodian for DTC of the Option Global SAILS representing all of the
Option SAILS being purchased on such Option Closing Date.
5. Offering by Underwriters. It is understood that the Underwriters
propose to offer the SAILS for sale to the public as set forth in the Company
Prospectus.
6. Certain Additional Agreements of IBC. IBC agrees with the
Underwriters or the Company, if applicable, that:
(a) If the IBC Effective Time is prior to the execution and delivery
of this Agreement, IBC will file the IBC Prospectus with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and
if consented to by CSFBC, 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 _______ business day after the IBC
Effective Date. IBC will advise the Underwriters and the Company promptly
of any such filing pursuant to Rule 424(b);
(b) IBC will advise the Underwriters and the Company promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus or the IBC Registration Statement or the IBC Prospectus
(including any amendment to a document required to be filed under the
Exchange Act which, upon filing, is deemed to be incorporated by reference
therein) and will not effect such amendment or
17
supplementation without (i) the consent of CSFBC, which will not be
unreasonably withheld, in the case of an amendment to the registration
statement as filed or the related prospectus or the IBC Registration
Statement or the IBC Prospectus and (ii) giving CSFBC a reasonable
opportunity to review and comment on such amendment or supplementation in
the case of an amendment or supplement to a document incorporated by
reference; and IBC will also advise CSFBC and the Company promptly of the
effectiveness of the IBC Registration Statement (if the IBC Effective Time
is subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of the IBC Registration Statement or the IBC
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of the IBC Registration Statement and will use all
reasonable 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 IBC Shares is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the IBC
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 such
time to amend the IBC Prospectus to comply with the Act, IBC will promptly
amend the IBC Prospectus to comply with the Act, IBC will promptly notify
CSFBC and the Company of such event and will promptly prepare and file with
the Commission, at its own expense (unless such amendment relates to
information provided by the Company or the terms of the SAILS, in which
case it shall be at the Company's expense), an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance. Neither CSFBC's consent to, nor the Underwrites'
delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 9;
(d) IBC will furnish to the Underwriters copies of the IBC
Registration Statement (six of which will be signed and will include all
exhibits), each related IBC Preliminary Prospectus, and, so long as
delivery of a prospectus relating to the IBC Shares is required to be
delivered under the Act in connection with sales by any Underwriters or
dealer, the IBC Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The IBC
Prospectus shall be so furnished on or prior to 3:00
18
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
Registration Statement. All other documents shall be so furnished as soon
as available. IBC and the Company will pay the expenses of printing and
distributing to the Underwriters all such documents as agreed between them;
(e) IBC will arrange for the qualification of the IBC Shares for sale
under the laws of such jurisdictions as CSFBC may designate and will
continue such qualifications in effect so long as required for the
distribution, except that IBC shall not be required in connection therewith
or as a condition thereof to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction or to make any
undertaking with respect to the conduct of its business. In each
jurisdiction in which the IBC Shares shall have been qualified as above
provided, IBC will file such statements and reports in each year as are or
may be reasonably required by the laws of such jurisdiction;
(f) During the period of three years after the date of this
Agreement, IBC will furnish to CSFBC, (i) concurrently with furnishing such
reports, if any, to its stockholders, quarterly reports of operations of
IBC for each of the first three quarters in the form furnished to IBC's
stockholders; (ii) concurrently with furnishing such reports to its
stockholders, annual reports of IBC as of the end of each fiscal year
(including financial statements audited by independent public accountants);
(iii) as soon as they are available, copies of all other reports (financial
or other) furnished to stockholders; (iv) as soon as they are available,
copies of all reports and financial statements furnished to or filed with
the Commission, any securities exchange or the National Association of
Securities Dealers, Inc. ("NASD"); and (v) any additional information of a
public nature concerning IBC or its business which CSFBC may reasonably
request. During such three-year period, if IBC shall have active
subsidiaries, the foregoing financial statements shall be on a consolidated
basis to the extent that the accounts of IBC and its subsidiaries are
consolidated and shall be accompanied by similar financial statements for
any significant subsidiary which is not so consolidated;
(g) So long as the SAILS are Outstanding (as defined in the
Indenture), and at the Company's expense, IBC will furnish to the Trustee
and the Company in sufficient quantity, copies of all annual
19
reports and proxy statements provided by IBC to its stockholders generally
(the "IBC Reports");
(h) During a period of 90 days after the date of the initial public
offering of the SAILS, IBC will not, and will cause its directors and
officers not to, without the prior written consent of CSFBC, issue, sell,
offer, agree 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 IBC Common Stock, any options,
warrants or other rights to purchase any shares of IBC Common Stock, or any
securities convertible into, exercisable for or exchangeable for shares of
IBC Common Stock, other than (i) sales of IBC Common Stock by the Company
to IBC and (ii) options granted and IBC Common Stock issued pursuant to
employee benefit and stock option plans existing on the date hereof; and
(i) IBC shall take such action as may be reasonably necessary to
comply with the rules and regulations of the NASD in respect of IBC Common
Stock to be registered in connection with the offering by the Company of
the SAILS.
7. Further Agreements of the Company. The Company covenants and
agrees with the Underwriters that:
(a) If the Company Effective Time is prior to the execution and
delivery of this Agreement, the Company will file the Company Prospectus
with the Commission pursuant to and in accordance with subparagraph (1)
(as, if applicable and if consented to by CSFBC, 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 fourth business day
after the Company Effective Date. The Company will advise the Underwriters
and IBC promptly of any such filing pursuant to Rule 424(b);
(b) The Company will advise the Underwriters and IBC promptly of any
proposal to amend or supplement the registration statement as filed or the
related prospectus to the Company Registration Statement or the Company
Prospectus (including any amendment to a document required to be filed
under the Exchange Act which, upon filing, is deemed to be incorporated by
reference therein) and will not effect such amendment or supplementation
without CSFBC's consent, which consent will not be unreasonably withheld;
and the Company will also advise CSFBC and IBC promptly of the
effectiveness of the Company Registration Statement (if the Company
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any
20
amendment or supplementation of the Company Registration Statement or the
Company Prospectus and of the institution by the Commission of any stop
order proceedings in respect of the Company Registration Statement and will
use all reasonable 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 SAILS is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, any event occurs as a result of which the Company
Prospectus as then amended or supplemented which 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 such
time to amend the Company Prospectus to comply with the Act, the Company
will promptly notify CSFBC of such event and will promptly prepare and file
with the Commission, at its own expense (unless such amendment relates to
information provided by IBC in which case it shall be at IBC's expense), an
amendment or supplement which will correct such statement or omission or an
amendment, which will effect such compliance. Neither CSFBC's consent to,
not the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 9;
(d) The Company will furnish to the Underwriters copies of the
Company Registration Statement (six of which will be signed and will
include all exhibits), each related Company Preliminary Prospectus, and, so
long as delivery of a prospectus relating to the SAILS is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Company Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The Company
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 Registration Statement. All other
documents shall be so furnished as soon as available. IBC and the Company
will pay the expenses of printing and distributing to the Underwriters all
such documents as agreed between them;
(e) The Company will arrange for the qualification of the SAILS for
sale under the laws of such jurisdictions as CSFBC may designate and will
continue such qualifications in effect so long as required for the
distribution of the SAILS contemplated
21
by this Agreement, except that the Company shall not be required in
connection therewith or as a condition thereof to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction or to make any undertaking with respect to the conduct of its
business. In each jurisdiction in which the SAILS shall have been
qualified as above provided, the Company will file such statements and
reports in each year as are or may be reasonably required by the laws of
such jurisdiction;
(f) During the period of three years after the date of this
Agreement, the Company will furnish to CSFBC, (i) concurrently with
furnishing such reports, if any, to its stockholders, quarterly reports of
operations of the Company for each of the first three quarters in the form
furnished to the Company's stockholders; (ii) concurrently with furnishing
such reports to its stockholders, annual reports of the Company as of the
end of each fiscal year (including financial statements audited by
independent public accountants; (iii) as soon as they are available, copies
of all other reports (financial or other) furnished to stockholders; (iv)
as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, any securities
exchange or the NASD; and (v) any additional information of a public nature
concerning the Company or its business which CSFBC may reasonably request.
During such three-year period, if the Company shall have active
subsidiaries, the foregoing financial statements shall be on a consolidated
basis to the effect that the accounts of the Company and its subsidiaries
are consolidated and shall be accompanied by similar financial statements
for any significant subsidiary which is not so consolidated;
(g) The Company will apply the net proceeds from the sale of the
SAILS being sold by it hereunder substantially in the manner set forth
under the caption "Use of Proceeds" in the Company Prospectus;
(h) During a period of 90 days after the date of the initial public
offering of the SAILS, the Company will not, without the prior written
consent of CSFBC, issue, sell, offer, agree 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 SAILS or
shares of IBC Common Stock, any options, warrants or other rights to
purchase any shares of IBC Common Stock, or any securities convertible
into, exercisable for or exchangeable for shares of IBC Common Stock (other
than the IBC Common Stock offered pursuant to the Company
22
Prospectus and IBC Prospectus or sales by the Company to IBC of IBC Common
Stock); and
(i) The Company will not, without the Underwriters' consent, offer or
sell, or publicly announce its intention to sell, any debt securities
having a maturity of more than one year covered by any registration
statement filed under the Act (except under prior contractual commitments
or pursuant to bank credit agreements) during the period beginning on the
date of this Agreement and ending 30 days following the First Closing Date.
8. Expenses. The Company and IBC further agree with the Underwriters
that:
(a) The Company and IBC will pay all (i) expenses incident to the
performance of the Company's and IBC's obligations under this Agreement
(such expenses to be allocated between them as the Company and IBC may
agree) and will reimburse the Underwriters for any reasonable expenses,
including fees, charges and disbursements of Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel for the Underwriters ("Underwriters' Counsel"), reasonably incurred
in connection with qualification of each of the SAILS and IBC Common Stock
for sale and determination of their eligibility for investment under the
laws of such jurisdictions as CSFBC designates and the printing of
memoranda relating thereto, (ii) fees charged by investment rating agencies
for the rating of the SAILS, (iii) travel expenses of the Company's and
IBC's officers and employees and any other expenses of the Company and IBC
in connection with attending or hosting meetings with prospective
purchasers of the SAILS and (iv) expenses incurred in distributing any
Preliminary Company Prospectus, Preliminary IBC Prospectus, the Company
Prospectus and the IBC Prospectus (including any amendments and supplements
thereto) to the Underwriters; and
(b) If the transactions contemplated hereby are not consummated by
reason of any failure, refusals or inability on the part of the Company or
IBC, as the case may be, to perform any agreement on their respective parts
to be performed hereunder or to fulfill any condition of the Underwriters'
obligations hereunder, the Company and IBC will reimburse the Underwriters
for all out-of-pocket expenses (including reasonable fees, charges and
disbursements of Underwriters' Counsel) reasonably incurred by the
Underwriters in investigating, preparing to market or marketing the SAILS.
23
9. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm SAILS
on the First Closing Date and the Option SAILS to be purchased on each Option
Closing Date will be subject to the accuracy of the representations and
warranties of IBC and the Company herein, to the accuracy of the statements of
Company officers or IBC officers made pursuant to the provisions hereof, to the
performance by IBC and the Company of their respective obligations hereunder,
and to each of the following additional conditions precedent:
(a) The Underwriters shall have received a letter, dated the date of
delivery thereof (which, if the IBC Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the date
of this Agreement or, if the IBC Effective Time 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 IBC Registration Statement
to be filed shortly prior to the IBC Effective Time), of Deloitte & Touche
LLP confirming that they are independent public accountants within the
meaning of the Act and the Rules and Regulations and stating in effect
that:
(i) in their opinion the financial statements and schedules
examined by them and included in the IBC Registration Statement
or incorporated by reference therein comply in form in all
material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of IBC, inquiries of officials of IBC who
have responsibility for financial and accounting matters and
other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet read by
Deloitte & Touche LLP, or at a subsequent specified date not
more than three business days prior to the date of this
Agreement, there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt of IBC
or, at the date of the latest available
24
balance sheet read by such accountants, there was any decrease
in net assets, as compared with amounts shown on the latest
balance sheet included in the IBC Prospectus; or
(B) for the period from the closing date of the latest income
statement included in the IBC Prospectus to the closing date of
the latest available income statement read by such accountants,
there were any decreases, as compared with the corresponding
period of the previous year, in the net sales or total amount
of net income;
except in all cases set forth in clauses (A) and (B) above for
changes, increases or decreases which the IBC Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(iii) they have compared specified dollar amounts (or percentages derived
from such dollar amounts) and other financial information contained
in the IBC Registration Statement or incorporated by reference
therein (in each case to the extent that such dollar amounts,
percentages and other financial information are derived from the
general accounting records of IBC and its subsidiaries subject to
the internal controls of IBC's accounting system or are derived
directly form such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
For purposes of this Section 9(a), if the IBC Effective Time is subsequent
to the execution and delivery of this Agreement, "IBC Registration
Statement" shall mean the registration statement as proposed to be amended
by the amendment or post-effective amendment to be filed shortly prior to
the IBC Effective Time, and "IBC
25
Prospectus" shall mean the prospectus included in the IBC Registration
Statement.
(b) The Underwriters shall have received a letter, dated the date of
delivery thereof (which, if the Company Effective Time is prior to the
execution and delivery of this Agreement, shall be on or prior to the date
of this Agreement or, if the Company Effective Time 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 Company Registration
Statement to be filed shortly prior to the Company Effective Time), of
Price Waterhouse LLP confirming that they are independent public
accountants within the meaning of the Act and the Rules and Regulations and
stating in effect that:
(i) in their opinion the financial statements and schedules
audited by them and included in the Company Registration
Statement or incorporated by reference therein comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials
of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) at the date of the latest available balance sheet read
by Price Waterhouse LLP, or at a subsequent specified
date not more than three business days prior to the
date of this Agreement, there was any change in the
common stock of the Company, any increase in short-term
indebtedness or long-term debt of the Company or any
decrease in current net assets or shareholders' equity
of the Company and its subsidiaries as compared with
amounts shown on the latest balance sheet included in
the Company Prospectus; or
(B) for the period from the closing date of the latest
income statement included in the Company Prospectus to
the closing date of the latest
26
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in the
consolidated net sales, earnings before equity
earnings or net earnings;
except in all cases set forth in clauses (A) and (B)
above for changes, increases or decreases which the
Company Prospectus discloses have occurred or may occur
or which are described in such letter; and
(iii) they have compared certain specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Company
Registration Statement or incorporated by reference
therein, as described in such letter (in each case to
the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's
accounting system or are derived directly from such
records by analysis or computation) with the results
obtained from inquiries, a reading of such general
accounting records and other procedures specified in
such letter and have found such dollar amounts,
percentages and other financial information to be in
agreement with such results, except as otherwise
specified in such letter.
For purposes of this Section 9(b), if the Company Effective Time is
subsequent to the execution and delivery of this Agreement, the "Company
Registration Statement" shall mean the registration statement as proposed
to be amended by the amendment or post-effective amendment to be filed
shortly prior to the Company Effective Time, and the "Company Prospectus"
shall mean the prospectus included in the Company Registration Statement.
(c) If the IBC Effective Time is not prior to the execution and
delivery of this Agreement, the IBC Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or such
later date as shall have been consented to by CSFBC. If the IBC Effective
Time is prior to the execution and delivery of this Agreement, the IBC
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section
27
6(a) of this Agreement. Prior to the Closing Date, no stop order suspending
the effectiveness of the IBC Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to the
knowledge of IBC or the Underwriters, shall be contemplated by the
Commission.
(d) If the Company Effective Time is not prior to the execution and
delivery of this Agreement, the Company Effective Time shall have occurred
no later than 10:00 P.M., New York time, on the date of this Agreement of
such later date as shall have been consented to by CSFBC. If the Company
Effective Time is prior to the execution and delivery of this Agreement,
the Company Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 7(a) of this
Agreement. Prior to the Closing Date, no stop order suspending the
effectiveness of the Company Registration Statement shall have been issued
and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriters, shall be contemplated by the
Commission.
(e) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in or affecting particularly the condition
(financial or other), business, properties or results of operations of the
Company, IBC or their respective subsidiaries which, in the judgment of a
majority in interest of the Underwriters, including CSFBC, is material and
adverse and makes it impractical or inadvisable to proceed with completion
of the public offering or sale of and payment for the SAILS; (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 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
IBC or the Company on any exchange or in the over-the-counter market; (iv)
any banking moratorium declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in which the United
States is involved, any declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the
28
Underwriters, including CSFBC, 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 SAILS.
(f) The Underwriters shall have received an opinion, dated such
Closing Date, of Xxxxx, Xxxxx & Xxxxx L.L.P, counsel for IBC, and an
opinion from Xxx Xxxxx Xxxxxx, Vice President, Corporate Secretary and
General Counsel of IBC as to paragraphs (iv) and (v) only, to the effect
that:
(i) The documents incorporated by reference in the IBC
Registration Statement or the IBC Prospectus, when
they were filed with the Commission under the Exchange
Act, complied as to form in all material respects with
the requirements of the Exchange Act and the Exchange
Act Rules and Regulations, as applicable, except that
Shook, Hardy & Bacon L.L.P. need express no opinion
with respect to the financial statements or other
financial data contained or incorporated by reference
therein;
(ii) IBC and Brands have been duly incorporated and are
validly existing as corporations in good standing
under the laws of the State of Delaware, and have all
requisite corporate power and corporate authority to
own their respective properties and conduct their
respective businesses as described in the IBC
Prospectus; IBC and Brands are duly qualified to do
business as a foreign corporation and is in good
standing in each jurisdiction in which it owns or
leases substantial properties or the conduct of their
businesses requires such qualification, except where
the failure to be so qualified or in good standing
would not have an IBC Material Adverse Effect;
(iii) The IBC Firm Shares or the IBC Option Shares, as the
case may be, and all of the issued shares of capital
stock of IBC are duly authorized, validly issued,
fully paid and nonassessable; the capital stock of IBC
(including the IBC Shares) conforms in all material
respects to the statements relating thereto contained
in the IBC Registration Statement and the IBC
Prospectus; the form of certificate used to evidence
the IBC Common Stock is in due and proper form and
otherwise complies with all statutory requirements
under the laws of the State of Delaware; except as
described in or contemplated
29
by, the IBC Prospectus (including stock option plans
described therein), there are no outstanding options,
warrants or other rights for the issuance of, and
there are not commitments, plans or arrangements to
issue, any shares of capital stock of IBC or any
security convertible into or exercisable or
exchangeable for, any shares of capital stock of IBC;
(iv) No consent, approval, authorization or order of, or
filing with, any governmental agency or body or any
court is required for the consummation of the
transactions contemplated by this Agreement, except
such as may be required under the Act, the Rules and
Regulations, the Exchange Act, the Exchange Act Rules
and Regulations or under state or other securities or
Blue Sky laws, rules and regulations;
(v) The execution, delivery and performance of this
Agreement and the consummation of the transactions
herein contemplated will not result in a breach or
violation of 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 having jurisdiction over IBC or any
subsidiary of IBC or any of their properties or any
agreement or instrument to which IBC or Brands is a
party or by which IBC or Brands is bound or to which
any of the properties of IBC or Brands is subject, or
the charter or bylaws of any subsidiary of IBC;
(vi) Except as described in the IBC Prospectus or except as
previously waived, there are no contracts, agreements
or understandings between IBC and any person granting
such person the right to require IBC to file a
registration statement under the Act with respect to
any securities of IBC owned or to be owned by such
person or to require IBC to include such securities in
the securities registered pursuant to the IBC
Registration Statement or in any securities being
registered pursuant to any other
30
registration statement filed by IBC under the Act;
(vii) The IBC Registration Statement was declared effective under
the Act as of the date and time specified in such opinion,
the IBC Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included
in the IBC Registration Statement (as the case may be), and,
to the knowledge of Shook, Hardy & Bacon L.L.P., no stop
order suspending the effectiveness of the IBC Registration
Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or are
pending or contemplated under the Act; and the IBC
Registration Statement and the IBC Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, or at such Closing Date, as the
case may be, complied as to form in all material respects
with the requirements of the Act and the Rules and
Regulations, except that Shook, Hardy & Bacon L.L.P. need
express no opinion with respect to the financial statements
or other financial data contained or incorporated by
reference therein; no facts have come to the attention of
Xxxxx, Xxxxx & Xxxxx L.L.P. causing it to believe that
either the IBC Registration Statement or the IBC Prospectus,
or any such amendment or supplement, as of such respective
dates or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading; any descriptions
in the IBC Registration Statement and the IBC Prospectus of
the charter and by-laws of IBC, statutes, legal and
governmental proceedings and contracts and other documents
are accurate and fairly present the information required to
be shown; Xxxxx, Xxxxx & Xxxxx L.L.P. does not know of any
contracts or documents required to be filed as exhibits to
the IBC Registration Statement which are not filed as
required, it being understood that Xxxxx, Xxxxx & Bacon
L.L.P. need express no opinion as to the financial
statements or other financial data
31
contained in the IBC Registration Statement or the IBC
Prospectus.
In rendering such opinion, Xxxxx, Xxxxx & Xxxxx L.L.P. may rely as to the
materiality of agreements and other factual matters on one or more written
certificates of officers of IBC or public officials, as and to the extent
they deem such reliance appropriate. It is further understood that the
negative assurance to be given by Xxxxx, Xxxxx & Xxxxx L.L.P. with respect
to material misstatements and omissions in the IBC Registration Statement,
the IBC Prospectus and each amendment or supplement thereto as set forth in
paragraph (ix) of this Section 9(f) may be set forth in a separate
statement in its opinion and need not be set forth in a numbered paragraph
therein.
(g) The Underwriters shall have received an opinion, dated such
Closing Date, from (i) Xxxxx Xxxx LLP, special tax counsel for the Company,
to the effect that the discussion presented under the heading "Certain
United States Federal Income Tax Considerations" in the Company Prospectus
is an accurate summary of the material federal income tax consequences
relevant to an investment in the SAILS and (ii) from Xxxxx Xxxxxxx, Vice
President, General Counsel and Assistant Secretary of the Company, to the
effect that:
(i) The documents incorporated by reference in the Company
Registration Statement and the Company Prospectus, when they
were filed with the Commission under the Exchange Act,
complied as to form in all material respects to the
requirements of the Exchange Act and the Exchange Act Rules
and Regulations (except that such counsel need express no
opinion as to the financial statements and related schedules
and the other financial data contained therein);
(ii) Each of the Company and each of Eveready Battery Company
Inc., VCS Holding Company, Xxxxxxx Overseas Battery Company
and Protein Technologies International Inc. (together the
"Company Significant Subsidiaries") has been duly
incorporated and is a corporation validly existing in good
standing under the laws of the jurisdiction of its
incorporation, with corporate power and corporate authority
to own their respective properties and conduct their
respective businesses as described in the Company
Prospectus; the Company and each of the Company Significant
Subsidiaries are duly qualified to do
32
business as a foreign corporation in each jurisdiction
listed as an attachment to the opinion of Xxxxx X. Xxxxxxx;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and has been duly qualified under
the Trust Indenture Act; the Firm SAILS have been duly
authorized by the Company; the Firm SAILS or the Option
SAILS, as the case may be, have been duly executed by the
Company; the Indenture constitutes, and the Firm SAILS and
any Option SAILS, when duly authenticated, issued and
delivered against payment therefor in accordance with the
terms of this Agreement, will constitute, valid and legally
binding obligations of the Company, enforceable in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization and other similar
laws of general applicability relating to or affecting
creditors' rights and general equity principles, whether
applied by a court of law or equity; the SAILS conform in
all material respects to the statements relating thereto
contained in the Company Registration Statement and the
Company Prospectus;
(iv) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is
required for the consummation by the Company of the
transactions contemplated by this Agreement in connection
with the issuance or sale of the SAILS by the Company,
except such as may be required under the Act, the Rules and
Regulations, the Exchange Act, the Exchange Act Rules and
Regulations, the Trust Indenture Act or under state or local
securities laws, rules and regulations;
(v) The execution, delivery and performance of this Agreement
and the consummation by the Company of the transactions
herein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a
default under, any statute, rule,
33
regulation or order known to such counsel of any
governmental agency or body or any court having jurisdiction
over the Company or any Company Significant Subsidiary or
any of their respective properties, or any agreement or
instrument known to such counsel to which the Company or any
Company Significant Subsidiary is a party or by which the
Company or any Company Significant Subsidiary is bound, or
to which any of the properties of the Company or any Company
Significant Subsidiary is subject, or the charter or bylaws
of the Company or any Company Significant Subsidiary, and
the Company has full corporate power and authority to
authorize, issue and sell the SAILS as contemplated by this
Agreement;
(vi) The Company Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge,
no stop order suspending the effectiveness of the Company
Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been instituted or
are pending or contemplated under the Act; and the Company
Registration Statement and the Company Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, or at such Closing Date, as the
case may be, complied as to form in all material respects
with the requirements of the Act, the Rules and Regulations
and the Trust Indenture Act (except that such counsel need
express no opinion as to the financial statements and
related schedules and the other financial data contained or
incorporated by reference therein or as to the Statement of
Eligibility and Qualification under the Trust Indenture Act
on Form T-1 of the Trustee (the "T-1"));
In addition, Xxxxx X. Xxxxxxx shall state that he has no reason
to believe that either the Company Registration Statement or the Company
Prospectus, or any amendment or supplement thereto, as of their respective
dates or as of such Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading; and
Xxxxx X. Xxxxxxx does not know of any legal or governmental proceedings
required to be described in the Company Registration Statement or the
Company Prospectus which are not
34
described as required, or of any contracts or documents of a character
required to be described in the Company Registration Statement or in any
document incorporated by reference therein or in the Company Prospectus, or
to be filed as exhibits to the Company Registration Statement which are not
described and filed as required, it being understood that he need express
no opinion as to the T-1 or the financial statements and related schedules
or other financial data contained in the Company Registration Statement or
the Company Prospectus.
(h) The Underwriters shall have received from Underwriters' Counsel
such opinion or opinions with respect to the incorporation of IBC and the
Company, the validity of the Firm SAILS or the Option SAILS, as the case
may be, the IBC Registration Statement, the Company Registration Statement,
the IBC Prospectus, the Company Prospectus and other related matters as the
Underwriters may require, and the Company and IBC shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Underwriters'
Counsel may rely as to matters of Missouri law on the opinion of Xxxxx
Xxxxxxx.
(i) The Underwriters shall have received a certificate, dated such
Closing Date, of the [ ] and [ ] of IBC to the effect that, and the
Underwriters shall be otherwise satisfied that: (i) the representations
and warranties of IBC in this Agreement are true and correct as if made on
and as of such Closing Date; (ii) IBC has complied with all the agreements
and satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date; (iii) to their knowledge no stop order
suspending the effectiveness of the IBC Registration Statement has been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; and (iv) that subsequent to the date of the
most recent financial statements in the IBC Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, which has had or could have an IBC
Material Adverse Effect except as set forth in or contemplated by the IBC
Prospectus or described in such certificate.
(j) The Underwriters shall have received a certificate, dated such
Closing Date, of the [ ] and [ ] of the Company to the effect that,
and the Underwriters shall be otherwise satisfied that: (i) the
representations and warranties of the Company in this Agreement are true
and correct as if made on and as of such Closing Date; (ii) the Company has
complied
35
with all the agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to such Closing Date; (iii) to their
knowledge that no stop order suspending the effectiveness of the Company
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are contemplated by the Commission; and (iv) that
subsequent to the date of the most recent financial statements in the
Company Prospectus, there has been no material adverse change, nor any
development or event involving a prospective material adverse change, which
has had or could have a Company Material Adverse Effect except as set forth
in or contemplated by the Company Prospectus or described in such
certificate.
(k) The Underwriters shall have received letters, dated such Closing
Date, of Deloitte & Touche LLP and Price Waterhouse LLP which meet the
requirements of Sections 9(a) and 9(b) hereof, except that the specified
dates referred to in Sections 9(a) and 9(b) hereof will be a date not more
than three business days prior to the Closing Date for the purposes of this
Section 9(k).
IBC and the Company will furnish the Underwriters with such conformed
copies of such opinions, certificates, letters and documents as the Underwriters
reasonably request. CSFBC may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of the First Closing Date, an Option
Closing Date or otherwise.
10. Indemnification and Contribution.
(a) IBC will indemnify and hold harmless each Underwriter and the
Company against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter or the Company, 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 breach of any representation, warranty, agreement or
covenant of IBC herein contained or any untrue statement or alleged untrue
statement of a material fact contained in the IBC Information, the IBC
Registration Statement, any Preliminary IBC Prospectus, the IBC Prospectus
or any amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter or the Company for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim,
36
damage, liability or action as such expenses are incurred; provided,
however, that IBC shall not be liable in any such case (i) to any
Underwriter or the Company 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 or omission or alleged omission made in any of such
documents in reliance upon and in conformity with written information
furnished to IBC by or on behalf of any Underwriter or the Company
specifically for use therein, unless such loss, claim, damage or liability
arises out of the offer or sale of SAILS occurring after any Underwriter or
the Company, as the case may be, has notified IBC in writing that such
information should no longer be used therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described in subsection (h) below and that the only such
information provided by the Company consists of information described in
subsection (j) below or (ii) to any Underwriter if (A) any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in any of such documents, (B) such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in any amendment or
supplement to the IBC Registration Statement or the IBC Prospectus, (C) IBC
shall have performed each of its obligations under Section 6 in respect of
such amendment or supplement and (D) to the extent that a prospectus
relating to such SAILS was required to be delivered by such Underwriter
under the Act, such Underwriter, having been furnished by or on behalf of
IBC with copies of the IBC Prospectus as so amended or supplemented,
thereafter fails to deliver such amended or supplemented IBC Prospectus
prior to or concurrently with the sale of SAILS to the person asserting
such loss, claim, damage, or liability who purchased such SAILS from such
Underwriter. The indemnification provided for in this Section 10(a) shall
be in addition to any liabilities which IBC may otherwise have and shall
extend upon the same terms and conditions to, and shall inure to the
benefit of, each person, if any, who controls any Underwriter or the
Company within the meaning of the Act.
(b) The Company will indemnify and hold harmless each Underwriter and
IBC, against any losses, claims, damages or liabilities, joint or several,
to which such Underwriter or IBC, 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
37
material fact contained in the Company Information, the Company
Registration Statement, the Company Prospectus or any amendment or
supplement thereto, or any Preliminary Company Prospectus, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter or
IBC for any legal or other expenses reasonably incurred by them 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 (i) to any Underwriter or
IBC 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 or
omission or alleged omission made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by or
on behalf of any Underwriter or IBC specifically for use therein, unless
such loss, claim, damage or liability arises out of the offer or sale of
SAILS occurring after the Underwriter or IBC, as the case may be, has
notified the Company in writing that such information should no longer be
used therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described in
subsection (i) below and that the only such information provided by IBC
consists of information described in subsection (k) below or (ii) to any
Underwriter if (A) any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents, (B) such untrue
statement or alleged untrue statement or omission or alleged omission is
corrected in any amendment or supplement to the Company Registration
Statement or the Company Prospectus, (C) the Company shall have performed
each of its obligations under Section 6 in respect of such amendment or
supplement and (D) to the extent that a prospectus relating to such SAILS
was required to be delivered by such Underwriter under the Act, such
Underwriter, having been furnished by or on behalf of the Company with
copies of the Company Prospectus as so amended or supplemented, thereafter
fails to deliver such amended or supplemented Company Prospectus prior to
or concurrently with the sale of SAILS to the person asserting such loss,
claim, damage, or liability who purchased such SAILS from such Underwriter.
The indemnification provided for in this Section 10(b) shall be in addition
to any liabilities which the Company may otherwise have and shall extend
upon the same terms and conditions to, and inure to the benefit
38
of, each person, if any, who controls any Underwriter or IBC within the
meaning of the Act.
(c) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless IBC against any losses, claims, damages or liabilities to
which IBC may also 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 the Company Registration
Statement, the IBC Registration Statement, the Company Prospectus, the IBC
Prospectus or any amendment or supplement thereto, or any Preliminary
Company Prospectuses or Preliminary IBC Prospectuses, 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 IBC by such Underwriter through CSFBC
specifically for use therein, and will reimburse IBC for any legal or other
expenses reasonably incurred by IBC in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described in subsection (h) below. The indemnification provided for in this
Section 10(c) shall be in addition to any liabilities which the
Underwriters may otherwise have and shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each officer and director
of IBC and each person, if any, who controls IBC within the meaning of the
Act.
(d) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Company Registration Statement, the IBC Registration Statement, the Company
Prospectus, the IBC Prospectus or any amendment or supplement thereto, or
any Preliminary Company Prospectuses or Preliminary IBC Prospectuses, or
arise out of or are based upon the omission to state therein a material
fact required to be stated therein or necessary to make the statements
39
therein not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through CSFBC
specifically for use therein, and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described in subsection (i) below. The indemnification provided
for in this Section 10(d) shall be in addition to any liabilities which the
Underwriters may otherwise have and shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each officer and director
of the Company and each person, if any, who controls the Company within the
meaning of the Act.
(e) Promptly after receipt by an indemnified party under this Section
10 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying
party under subsection (a), (b), (c) or (d) above, notify the indemnifying
party of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have
to any indemnified party under subsection (a), (b), (c) or (d) above except
to the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, which consent shall not
unreasonably be withheld, 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 10(e) for any legal
expenses subsequently incurred by such indemnified party in connection with
the defense thereof, other than reasonable costs of investigation. An
indemnifying party shall not be liable for any amounts paid in settlement
of any action or claim without its written consent, which shall not be
unreasonably withheld.
40
(f) 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.
(g) If the indemnification provided for in this Section 10 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) 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), (c) or (d) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company or
IBC, as applicable, on the one hand, and the Underwriters, on the other
hand, from the offering of the SAILS 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 or IBC, as
applicable, on the one hand, and the Underwriters, on the other hand, 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 or IBC, as
applicable, on the one hand, and the Underwriters, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received (directly or indirectly) by
the Company, bears to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, IBC or the
Underwriters 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 Section 10(g) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
Section 10(g). Notwithstanding the provisions of this Section 10(g),
41
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the SAILS underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations
in this Section 10(g) to contribute are several in proportion to their
respective underwriting obligations and not joint.
(h) The Underwriters confirm that the only information furnished by
any Underwriter for the IBC Prospectus consists of the legend concerning
over allotments and stabilization on the inside front cover page, and the
concession and reallowance figures appearing in the fourth paragraph under
the caption "Underwriting", and the information contained in the sixth
paragraph under the caption "Underwriting".
(i) The Underwriters confirm that the only information furnished by
any Underwriter for the Company Prospectus consists of the last paragraph
at the bottom of the cover page concerning the terms of the offering by the
Underwriters, the legend concerning over-allotments and on the inside front
cover page, and the concession and reallowance figures appearing in the
fourth paragraph under the caption "Underwriting" and the information
contained in the seventh paragraph under the caption "Underwriting".
(j) The Company confirms that the statements with respect to the
terms of the SAILS set forth on the cover page of any Preliminary IBC
Prospectus and in the final form of IBC Prospectus filed pursuant to Rule
424(b) (the "Company Information") constitute the only information
furnished in writing to IBC by the Company specifically for inclusion in
any Preliminary IBC Prospectus, the IBC Prospectus or the IBC Registration
Statement.
(k) IBC confirms that the information set forth under "Interstate
Bakeries Corporation" in any Preliminary Company Prospectus and in the
final form of Company Prospectus filed pursuant to Rule 424(b) (the "IBC
Information") constitutes the only information furnished in writing to the
Company by IBC specifically for inclusion in any Preliminary Company
Prospectus, the Company Prospectus or the Company Registration Statement.
42
(l) The agreement contained in this Section 10 and the
representations, warranties and agreements of IBC in Section 2 and 6, and
of the Company in Sections 3 and 7, shall survive the delivery of the SAILS
and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of
any indemnified party.
11. Definition of the Terms "Business Day" and "Subsidiary". For
purposes of this Agreement, (a) "business day" means any day on which commercial
banks in The City of New York are open for business and (b) "subsidiary" has the
meaning set forth in Rule 405 of the Rules and Regulations.
12. Default of Underwriters. If any Underwriter defaults in its
obligations to purchase SAILS hereunder on either the First Closing Date or any
Option Closing Date and the aggregate number of SAILS that such defaulting
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of SAILS that the Underwriters are obligated to purchase on such Closing
Date, CSFBC may make arrangements satisfactory to the Company for the purchase
of such SAILS by other persons, including the non-defaulting Underwriter, but if
no such arrangements are made by such Closing Date, the non-defaulting
Underwriter shall be obligated to purchase the SAILS that such defaulting
Underwriter agreed but failed to purchase on such Closing Date. If any
Underwriter so defaults and the aggregate number of SAILS with respect to which
such default occurs exceeds 10% of the total number of SAILS that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Company for the purchase of such SAILS by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of the non-defaulting Underwriter or the
Company or IBC, except as provided in Section 13 (provided that if such default
occurs with respect to Option SAILS after the First Closing Date, this Agreement
will not terminate as to the Firm SAILS or any Option SAILS purchased prior to
such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section 12. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
13. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and IBC or their respective officers and of the
several Underwriters 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 the Company or IBC or any Underwriter
or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the SAILS. If
this
43
Agreement is terminated pursuant to Section 12 or if for any reason the purchase
of the SAILS by the Underwriters is not consummated, the Company shall remain
responsible for the expenses to be paid or reimbursed by it pursuant to Section
8 and the respective obligations of the Company and IBC and the Underwriters
pursuant to Section 10 shall remain in effect, and if any SAILS have been
purchased hereunder the representations and warranties in Section 2 and 3, and
all obligations under Sections 6 and 7 shall also remain in effect. If the
purchase of the SAILS by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 12 or the occurrence of any event specified in clauses (iii), (iv) or
(v) of Section 9(e) hereof, the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees, charges and disbursements of counsel)
reasonably incurred by them in connection with the offering of the SAILS.
14. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered, telecopied or facsimile and
confirmed to the Underwriters, c/o Credit Suisse First Boston Corporation,
Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Investment
Banking Department - Transactions Advisory Group, or, if sent to IBC, will be
mailed, delivered or telecopied and confirmed to it at Interstate Bakeries
Corporation, 00 Xxxx Xxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, Attention:
Xxx Xxxxx Xxxxxx; or, if sent to the Company, will be mailed, delivered,
telecopied or telegraphed and confirmed to it at Xxxxxxx Purina Company,
Checkerboard Square, St. Louis, Missouri 63164, Attention: General Counsel.
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 10, and no other
person will have any right or obligation hereunder.
16. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
19. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to principles of conflicts of laws.
The Company and IBC hereby submit 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
44
arising out of or relating to this Agreement or the transactions contemplated
hereby.
45
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us one of the counterparts hereof whereupon
it will become a binding agreement among the Company, IBC and the Underwriters
in accordance with its terms.
Very truly yours,
XXXXXXX PURINA COMPANY
By: ___________________________
Name:
Title:
INTERSTATE BAKERIES CORPORATION
By: ___________________________
Name:
Title:
The foregoing Underwriting
Agreement is hereby confirmed
and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BEAR, XXXXXXX & CO., INC.
XXXXXX BROTHERS INC.
X.X. XXXXXX SECURITIES INC.
SALOMON BROTHERS INC
Acting on behalf of
themselves and the
several Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: _______________________
Name:
Title:
46
SCHEDULE A
Number of
Underwriter SAILS
----------- ---------
Credit Suisse First Boston Corporation....................
Xxxx, Xxxxxxx, & Co.......................................
Xxxxxx Brothers Inc.......................................
X.X. Xxxxxx Securities Inc................................
Salomon Brothers Inc......................................
Total................................................
=========
