EXHIBIT 1
Bestfoods
[Title of Debt Securities]
Underwriting Agreement
New York, New York
[Date]
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Bestfoods, a Delaware corporation (the "Company"), proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), the principal amount of its
securities identified in Schedule I hereto (the "Securities") to be issued under
an indenture dated as of April 15, 1988, as amended by the First Supplemental
Indenture and Amendment dated March 2, 1994 (collectively, the "Indenture")
between the Company and Bankers Trust Company, as trustee (the "Trustee"). If
the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein, shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter as set forth below in this Section 1. Certain
terms used in this Section 1 are defined in paragraph (c) hereof.
a. If the offering of the Securities is a Delayed Offering (as
specified in Schedule I hereto), paragraph (i) below is applicable, and if
the offering of the Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for the use of Form S-3
under the Securities Act of 1933 (the
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"Act") and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (the file number of which is
set forth in Schedule I hereto) on such Form, including a basic
prospectus, for registration under the Act of the offering and sale of
the Securities. The Company may have filed one or more amendments
thereto, and may have used a Preliminary Final Prospectus, each of
which has previously been furnished to you. Such registration
statement, as so amended, has become effective. The offering of the
Securities is a Delayed Offering and, accordingly, it is not necessary
that any further information, with respect to the Securities and the
offering thereof required by the Act and the rules thereunder to be
included in the Final Prospectus, be included in an amendment to such
registration statement prior to the Effective Date. The Company will
next file with the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering
thereof. As filed, such final prospectus supplement shall include all
required information with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond those contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
(ii) The Company meets the requirements for the use of Form S-3
under the Act and has filed with the Commission a registration
statement (the file number of which is set forth in Schedule I hereto)
on such Form, including a basic prospectus, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (x) a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness
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of such registration statement, an amendment to such registration
statement, including the form of final prospectus supplement. In the
case of clause (x), the Company has included in such registration
statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Final Prospectus with respect to the
Securities and the offering thereof. As filed, such final prospectus
supplement or such amendment and form of final prospectus supplement
shall contain all Rule 430A Information, together with all other such
required information, with respect to the Securities and the offering
thereof and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent
not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond those contained in
the Basic Prospectus and any Preliminary Final Prospectus) as the
Company has advised you, prior to the Execution Time, will be included
or made therein.
b. On the Effective Date, the Registration Statement did or will, and
when the Final Prospectus is first filed (if required) in accordance with
Rule 424(b) and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act and the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and the respective rules thereunder; on
the Effective Date, the Registration Statement did not or will not contain
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; on the Effective Date and on the Closing Date the Indenture
did or will comply in all material respects with the requirements of the
Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules
thereunder; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), did not or will not, and on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus
(together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, how-
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ever, that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust Indenture Act of the
Trustee or (ii) the information contained in or omitted from the
Registration Statement or the Final Prospectus (or any supplement thereto)
in reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
specifically for use in connection with the preparation of the Registration
Statement or the Final Prospectus (or any supplement thereto).
c. The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date including, in the case of a Non-Delayed Offering, any
Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any
preliminary prospectus supplement to the Basic Prospectus which describes
the Securities and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus or, if, in the
case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is
required, shall mean the form of final prospectus relating to the
Securities, including the Basic Prospectus, included in the Registration
Statement at the Effective Date. "Registration Statement" shall mean the
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended at
the Execution Time (or, if not effective at the Execution Time, in the form
in which it shall become effective) and, in the event any post-effective
amendment thereto becomes effective prior to the Closing Date (as
hereinafter defined), shall also mean such registration statement as so
amended. Such term shall include any Rule 403A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation SK" refer to such rules and
regulations under
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the Act. "Rule 430A Information" means information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A. Any
reference herein to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein
pursuant to item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the issue
date of the Basic Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be,
deemed to be incorporated therein by reference. A "Non-Delayed Offering"
shall mean an offering of Securities which is intended to commence promptly
after the effective date of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other than Rule 430A
Information) with respect to the Securities so offered must be included in
such registration statement at the effective date thereof. A "Delayed
Offering" shall mean an offering of Securities pursuant to Rule 415 which
does not commence promptly after the effective date of a registration
statement with the result that only information required pursuant to Rule
415 need be included in such registration statement at the effective date
thereof with respect to the Securities so offered. Whether the offering of
the Securities is a Non-Delayed Offering or a Delayed Offering shall be set
forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed delivery arrangements,
the respective principal amounts of Securities to be purchased by
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the Underwriters shall be as set forth in Schedule II hereto less the respective
amounts of Contract Securities determined as provided below. Securities to be
purchased by the Underwriters are herein sometimes called the "Underwriters'
Securities" and Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract Securities."
If so provided in Schedule I hereto, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Schedule III hereto but with such changes therein as the Company may authorize
or approve. The Underwriters will endeavor to make such arrangements and, as
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I hereto of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the Underwriters have been
approved by the Company but, except as the Company may otherwise agree, each
such Delayed Delivery Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate principal amount of
Contract Securities may not exceed the maximum aggregate principal amount set
forth in Schedule I hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery Contracts. The
principal amount of Securities to be purchased by each Underwriter as set forth
in Schedule II hereto shall be reduced by an amount which shall bear the same
proportion to the total principal amount of Contract Securities as the principal
amount of Securities set forth opposite the name of such Underwriter bears to
the aggregate principal amount set forth in Schedule II hereto, except to the
extent that you determine that such reduction shall be otherwise than in such
proportion and so advise the Company in writing; provided, however, that the
total principal amount of Securities to be purchased by all Underwriters shall
be the aggregate principal amount set forth in Schedule II hereto less the
aggregate principal amount of Contract Securities.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the office,
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on the date and at the time specified in Schedule I hereto (or such later date
not later than five business days after such specified date as the
Representatives shall designate), which date and time may be postponed by
agreement between the Representatives and the Company or as provided in Section
8 hereof (such date and time of delivery and payment for the Underwriters'
Securities being herein called the "Closing Date"). Delivery of the
Underwriters' Securities shall be made to the Representatives for the respective
accounts of the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by certified or official bank
check or checks drawn on or by a New York Clearing House bank and payable in
next day funds or by wire transfer in same-day funds to an account or accounts
designated by the Company (the Company shall pay the Representatives the
overnight cost of providing such immediately available funds). Certificates for
the Underwriters' Securities shall be registered in such names and in such
denominations as the Representatives may request not less than two full business
days in advance of the Closing Date.
The Company agrees to have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in New York, New York,
not later than 1:00 P.M. on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
a. The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment to the Registration
Statement or supplement (including the Final Prospectus or any Preliminary
Final Prospectus) to the Basic Prospectus unless the Company has furnished
you with a copy for your review prior to filing and will not file any such
proposed amendment or supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within the
time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise the
Representatives (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment
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thereto, shall have become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the Commission pursuant
to Rule 424(b), (iii) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the Commission for any
amendment of the Registration Statement or supplement to the Final
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (vi) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
b. If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or effect such
compliance.
c. As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earning statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
d. The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of
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any Preliminary Final Prospectus and the Final Prospectus and any
supplement thereto as the Representatives may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
e. The Company will furnish to the Representatives and their counsel
such information as may be reasonably required by, and otherwise to
cooperate with, the Representatives in qualifying the Securities for
offering and sale under the securities or blue sky laws of such states as
the Representatives may designate (including the provisions of Florida blue
sky law, if requested, relating to issuers doing business with Cuba) and to
maintain such qualifications in effect as long as required for the
distribution of the Securities, provided that the Company shall not be
required to qualify as a foreign corporation or a dealer or to consent to
the service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Securities) or to take
any action which would or could subject the Company to taxation in any
state where it is not now so subject; and promptly advise the
Representatives of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities for sale
in any jurisdiction or the initiation or threatening of any proceeding for
such purpose.
5. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwriters' Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
a. If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statement will become effective not later than (i)
6:00 P.M., New York City time, on the date of determination of the public
offering price, if such determination occurred at or prior to 3:00 P.M.,
New York City time, on such date or (ii) 12:00 Noon, New York City time, on
the business day following the day on which the public offering price was
determined, if such determination occurred after 3:00
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P.M., New York City time, on such date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule 424(b), the Final
Prospectus, and any such supplement, shall have been filed in the manner
and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or
threatened.
b. The Company shall have furnished to the Representatives the opinion
of Xxxxx X. Xxxxxx, Esq., Vice President, General Counsel and Secretary for
the Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries of the Company set
forth in Schedule IV hereto (individually a "Subsidiary" and
collectively the "Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized (which
jurisdiction is set forth in Schedule IV hereto), with full corporate
power and authority to own its properties and conduct its business as
described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification wherein it
owns or leases material properties or conducts material business;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Final Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel after due inquiry, any
other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; the Securities conform in all material
respects to the description thereof contained in the Final Prospectus;
[if the Securities are to be listed on any stock exchange, insert: and
authorization for listing on the
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_______ Exchange has been given, subject to official notice of
issuance and evidence of satisfactory distribution, or the Company has
filed a preliminary listing application and all required supporting
documents with respect to the Securities with such stock exchange and
such counsel has no reason to believe that the Securities will not be
authorized for listing, subject to official notice of issuance and
evidence of satisfactory distribution;]
(iv) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character required to be
disclosed in the Registration Statement which is not adequately
disclosed in the Final Prospectus, and there is no franchise, contract
or other document of a character required to be described in the
Registration Statement or Final Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated in the Final Prospectus describing
any legal proceedings or material contracts or agreements relating to
the Company fairly summarize such matters in all material respects;
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein or in any Delayed Delivery Contract,
except such as have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection
with the purchase and distribution of the Securities by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained;
(vi) neither the execution and delivery of the Indenture nor the
issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof or of any Delayed Delivery Contract will conflict with, result
in a breach of or constitute a default under the charter or by-laws of
the Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or any of
its subsidiaries is a party or bound,
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or any order or regulation known to such counsel to be applicable to
the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries, except as
such conflict, breach or default which, whether individually or in the
aggregate, would not be expected to have a material adverse effect on
the operations, business or financial condition of the Company and the
Subsidiaries, taken as a whole; and
(vii) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, no facts
have come to the attention of such counsel, in the course of such
participation, that cause it to believe that the Registration Statement, or
any post-effective amendment thereto, as of the date it was declared
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, at the date of such Prospectus or such supplement and
at all times up to and including the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and other
financial and statistical data included in the Registration Statement or
Prospectus or with respect to the Trustee's Statement of Eligibility on
Form T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any
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jurisdiction other than the corporate laws of the State of Delaware or the
laws of the State of New York or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are satisfactory to counsel
for the Underwriters and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials. References to the Final Prospectus in this paragraph (b) include
any supplements thereto at the Closing Date.
c. The Company shall have furnished to the Representatives the opinion
of a law firm designated by the Company and reasonably acceptable to the
Representatives or from Xxxxx X. Xxxxxx, Esq., Vice President, General
Counsel and Secretary for the Company, dated the Closing Date, to the
effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act, and assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms, except as enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other laws relating to or
affecting creditors' rights generally, by general equitable principles
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) or by an implied covenant of good
faith and fair dealing; and the Securities have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts, in the case of any Contract Securities, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture, except as enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other laws
relating to or affecting creditors' rights generally, by general
equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law) or by an implied
covenant of good faith and fair dealing;
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(ii) the Registration Statement and any amendments thereof have
become effective under the Act; any required filing of the Basic
Prospectus, any Preliminary Final Prospectus and the Final Prospectus,
and any supplements thereto, pursuant to Rule 424(b) has been made in
the manner and within the time period required by Rule 424(b); and to
the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement as amended has been
issued, no proceedings for that purpose have been instituted or
threatened, and the Registration Statement and the Final Prospectus
(other than the financial statements and other financial and
statistical information contained therein as to which such counsel
need express no opinion) comply as to form in all material respects
with the applicable requirements of the Act and the Exchange Act and
the respective rules and regulations thereunder; and
(iii) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters, at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel has not independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus, no facts
have come to the attention of such counsel, in the course of such
participation, that cause it to believe that the Registration Statement, or
any post-effective amendment thereto, as of the date it was declared
effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus or any
supplement thereto, at the date of such Prospectus or such supplement and
at all times up to and including the Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading (it being under-
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stood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical data
included in the Registration Statement or Prospectus or with respect to the
Trustee's Statement of Eligibility on Form T-1).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
corporate laws of the State of Delaware or the laws of the State of New
York or the United States, to the extent deemed proper and specified in
such opinion, upon the opinion of other counsel of good standing believed
to be reliable and who are satisfactory to counsel for the Underwriters and
(B) as to matters of fact, to the extent deemed proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (c) include any supplements thereto at
the Closing Date.
d. The Representatives shall have received from a law firm, which law
firm shall be designated by the Company and approved by the Representatives
to act as counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
e. The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President or a Senior Vice President and the Treasurer or the Comptroller
of the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statement, the
Final Prospectus, any supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as to
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
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(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the actual knowledge of such
officers, threatened; and
(iii) since the date of the most recent financial statements
included in the Final Prospectus (exclusive of any supplement
thereto), there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the Company
and its subsidiaries, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated in
the Final Prospectus (exclusive of any supplement thereto).
f. The Representatives shall have received from the Company's
independent public accountants letters dated, respectively, as of the
Execution Time and the Closing Date, and addressed to the Underwriters
containing statements and information of the type customarily included in
accountants' "comfort letters" to underwriters.
g. Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exercise of any
amendment thereof) and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified in
the letter or letters referred to in paragraph (e) of this Section 5 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of Company or its subsidiaries, the
effect of which in any case referred to in clause (i) or (ii) above is, in
the reasonable judgment of the Representatives, so material and adverse as
to make it impractical or inadvisable to proceed with the offering or the
delivery of the Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Final Prospectus (exclusive of
any supplement thereto).
h. Subsequent to the Execution Time, there shall not have been any
decrease in the ratings of any of the Company's debt securities by Xxxxx'x
Investors Service, Inc. or Standard & Poor's Corporation.
-17-
i. Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
j. The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and their counsel, this Agreement and all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or telegraph confirmed
in writing.
6. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 5 hereof is not satisfied, because of
any termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any agreement herein
or comply with any provision hereof other than by reason of a default by any of
the Underwriters, the Company will reimburse the Underwriters severally upon
demand for all reasonable out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution. a. The Company agrees to indemnify and
hold harmless each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement for the registration of the
Securities as originally filed or
-18-
in any amendment thereof, or in the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, or in any amendment thereof 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 agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof and (ii) such indemnity with respect to
the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person did not receive a
copy of the Final Prospectus (or the Final Prospectus as supplemented) excluding
documents incorporated therein by reference at or prior to the confirmation of
the sale of such Securities to such person in any case where such delivery is
required by the Act and the untrue statement or omission of a material fact
contained in the Basic Prospectus or any Preliminary Final Prospectus was
corrected in the Final Prospectus (or the Final Prospectus as supplemented).
This indemnity agreement will be in addition to any liability which the Company
may otherwise have.
b. Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signs the Registration
Statement, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written information
relating to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the preparation
of the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in the
last paragraph of the cover page, under the headings "Underwriting" and "Plan of
Distribution" and, if Schedule I hereto provides
-19-
for sales of Securities pursuant to delayed delivery arrangements, in the last
sentence under the heading "Delayed Delivery Arrangements" in any Preliminary
Final Prospectus or the Final Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in the documents referred to in the foregoing indemnity, and you as the
Representatives, confirm that such statements are correct.
c. Promptly after receipt by an indemnified party under this Section 7 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 this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. 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 appoint counsel satisfactory to such
indemnified party to represent the indemnified party in such action; provided,
however, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 7 for any legal
or other expense subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the
-20-
indemnified party at the expense of the indemnifying party; and except that, if
clause (i) or (iii) is applicable, such liability shall be only in respect of
the counsel referred to in such clause (i) or (iii).
d. In order to provide for just and equitable contribution in circumstances
in which the indemnification provided for in paragraph (a) of this Section 7 is
due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) 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. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of the Act
shall have the same rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clause (z) of this
paragraph (d). Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this paragraph (d), notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any other obligation it or they may have hereunder or otherwise than under this
paragraph (d).
8. Default by an Underwriter. If any one or more Underwriters shall fail to
purchase and pay for any of the Se-
-21-
curities agreed to be purchased by such Underwriter or Underwriters hereunder
and such failure to purchase shall constitute a default in the performance of
its or their obligations under this Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Securities set forth opposite their names in Schedule II
hereto bears to the aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase; provided, however,
that in the event that the aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but fail to purchase shall exceed 10% of the
aggregate amount of Securities set forth in Schedule II hereto, the remaining
underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 8, the closing date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or the
New York, Chicago or Pacific Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal or New York State authorities or
(iii) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in the judgment of the
Representatives, impracticable to market the Securities.
10. Representation and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the
-22-
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 7 hereof, and will survive delivery of an payment
for the Securities. The provisions of Sections 6 and 7 hereof shall survive the
termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Representatives, will be mailed, delivered
or telegraphed and confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at International Plaza, X.X. Xxx 0000, Xxxxxxxxx Xxxxxx, Xxx
Xxxxxx 00000, attention of the Senior Vice President, Secretary and General
Counsel.
12. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
-23-
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
BESTFOODS
By:______________________________
[Title]
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[[Name of Representative]
----------------------------
(name of co-manager, if any)
By: [Name of Representative]
By: ________________________
[Title]
For themselves and the other sev-
eral Underwriters, if any,
named in Schedule II to the
Foregoing Agreement.]
[[Name of Representative]
By: ________________________
[Title]
For itself and the other sev-
eral Underwriters, if any,
named in Schedule II to the
Foregoing Agreement.]
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 333-
Representative(s): [Name of Representative]
[Name of co-manager, if any]
[Address of Representative]
Attention:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued interest or amortization, if any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering] [Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
SCHEDULE II
Principal Amount
of Securities to
Underwriters Be Purchased
$
Total.......................................... $______________
SCHEDULE III
Delayed Delivery Contract
[Date]
Name of Underwriter
[address]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from Bestfoods (the "Company"),
and the Company agrees to sell the undersigned, on ________, 19__ (the "Delivery
Date"), $______ principal amount of the Company's (the "Securities") offered by
the Company's prospectus dated ________, 19__, and related Prospectus Supplement
dated ________, 19__, receipt of a copy of which is hereby acknowledged, at a
price of __% of the principal amount thereof, plus [accrued interest]
[amortization of original issue discount], if any, thereon from _________, 19__,
to the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before 11:00 A.M., New York City time, on the Delivery Date to or upon the
order of the Company in New York Clearing House (next day) funds, at your office
or at such other place as shall be agreed between the Company and the
undersigned, upon delivery to the undersigned of the Securities in definitive
fully registered form and in such authorized denominations and registered in
such names as the undersigned may request by written or telegraphic
communication addressed to the Company not less than three full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure
-2-
thereof) that (1) the purchase of Securities to be made by the undersigned,
which purchase the undersigned represents is not prohibited on the date hereof,
shall not on the Delivery Date be prohibited under the laws of the jurisdiction
to which the undersigned is subject and (2) the Company, on or before the
Delivery Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Prospectus and Prospectus Supplement
mentioned above. Promptly after completion of such sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith. The obligation of
the undersigned to take delivery of and make payment for the Securities, and the
obligation of the Company to cause the Securities to be sold and delivered,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for the Securities pursuant to other contracts similar to this
contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the principles of conflicts of
laws.
Very truly yours,
---------------------------------
(Name of Purchaser)
By ______________________________
(Signature and Title of
Officer)
---------------------------------
(Address)
Accepted:
Bestfoods
By ____________________
[Title]
SCHEDULE IV
Bestfoods
Jurisdiction of
Subsidiaries Incorporation
Xxxxxx Foods Company, Inc. Delaware
Best Foods-Caribbean, Inc. Delaware
X. X. Xxxxxx, Inc. New York
Xxxxxxxxx'x, Inc. Delaware
