Exhibit 1
Richfood Holdings, Inc.
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:
Richfood Holdings, Inc., a Virginia corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
representatives, the [principal] amount of its securities identified in Schedule
I hereto (the "Securities")[, to be issued under an indenture dated as of [date]
and as supplemented from time to time (the "Indenture"), between the Company and
_______________, as trustee (the "Trustee")].
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) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933 (the "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. Although the Basic
Prospectus may not include all the 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, the Basic Prospectus
includes all such information required by the Act and the rules thereunder
to be included therein as of the Execution Time. 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 that 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. If the Registration Statement contains
the undertaking specified by Regulation S-K Item 512(a), the Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) At the Execution Time, the Registration Statement did or will,
and when the Final Prospectus is first filed 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, the Securities Exchange Act of 1934 (the
"Exchange Act") [and the Trust Indenture Act of 1939 (the "Trust Indenture
Act")] and the respective rules thereunder; at the Execution Time, 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 in order to make the statements therein not
misleading; at the Execution Time and on the Closing Date[, the Indenture
did or will comply in all material respects with the requirements of the
Trust Indenture Act and the rules thereunder]; and on the date of any
filing pursuant to Rule 434(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,
however, that the Company makes no representations or warranties as to
[(i) that part of the Registration Statement which shall constitute the
Statement of Eligibility and Qualification (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 inclusion in 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 "the 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 basic prospectus
referred to in the first sentence of paragraph (a) above contained in the
Registration Statement at the Effective Date or, if such basic prospectus
has been amended after the Effective Date, the basic prospectus as most
recently amended and filed pursuant to Rule 424(b). "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 the 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. "Registration Statement" shall mean the registration
statement referred to in the first sentence of paragraph (a) above,
including incorporated documents, exhibits and financial statements, as
amended at the Execution Time 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 430A Information deemed to be
included therein at the Effective Date as provided by Rule 430A. "Rule
415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulation under 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 document 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, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be, deemed to be
incorporated therein by reference.
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 the Securities set forth opposite
such Underwriter's name in Schedule II, plus any additional principal amount of
securities that such Underwriter may become obligated to purchase pursuant to
Section 9 of this Agreement.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at 10:00 a.m. on the third full business day following the date of
this Agreement, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made through the facilities
of the Depository Trust Company to the respective accounts of the Underwriters
against payment by each of the Underwriters through the Representatives of the
purchase price thereof to or upon the order of the Company by wire transfer
payable in same-day funds to an account specified by the Company by wire
transfer payable in same-day funds to an account specified by the Company.
Delivery of the Securities shall be made at such location as the Representatives
shall reasonably designate at least one business day in advance of the Closing
Date and payment for the Securities shall be made at the office specified in
Schedule I hereto. Certificates for the Securities shall be registered in such
names and in such denominations as the Representatives may request not less than
three full business days in advance of the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Representatives in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Company agrees with each of the Underwriters
that:
(a) The Company will use its reasonable best efforts to cause
the Registration Statement, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination of
the offering of the Securities, the Company will not file any amendment of
the Registration Statement or supplement (including the Final Prospectus
or any Preliminary Final Prospectus) to the Basic Prospectus or any
registration statement and any amendments thereto filed pursuant to Rule
462(b) relating to the offering covered by the registration statement
referred to in Section 1(a) hereof (a "Rule 462(b) Registration
Statement") unless the Company has furnished you 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, 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)
or when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (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 any Rule 462(b) Registration
Statement 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 institution or threatening
of any proceeding for such purpose. The Company will use its reasonable
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
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 notify the Representatives of such event, prepare
and file with the Commission, subject to the second sentence of paragraph
(a) of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provision of Section 11 of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the Registration Statement (without 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 each 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 use its reasonable best efforts, in cooperation
with the Underwriters, to (i) qualify the Securities for sale under the
laws of such jurisdictions as the Representatives may designate, (ii)
maintain such qualifications in effect so long as required for the
distribution of the Securities, and (iii) arrange for the determination of
the legality of the Securities for purchase by institutional investors;
provided that in no event shall the Company be obligated to (A) qualify to
do business in any jurisdiction where it is not now so qualified, (B) take
any action that would subject it to service of process in suits (other
than those arising out of the offer and sale of the Securities) in any
jurisdiction in which it is not now so subject or (C) qualify as a dealer
in securities in any jurisdiction in which it is not so qualified.
(f) The Company will not, until the Closing Date, without prior
written consent of the Representatives, offer, sell or contract to sell,
or otherwise dispose of (or enter into any transaction which is designed
to, or could be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, or announce the offering of, any debt securities issued or
guaranteed by the Company and having a maturity of more than one year from
their date of issuance (other than the Securities or other securities
covered by the Registration Statement).
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the 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, such agreement not to be unreasonably withheld, 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) 9:30 a.m. on the business day following the
day on which the public offering price was determined, if such
determination occurred after 3:00 p.m. New York City time on such date;
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 furnished to the Representatives the opinion
of Hunton & Xxxxxxxx, counsel to the Company, dated the Closing Date, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Final Prospectus; each of the Company's Significant Subsidiaries (as
defined in Regulation S-X, Rule 1-02(w)) has been duly incorporated
and is validly existing as a corporation under the laws of their
respective jurisdictions of incorporation with corporate power and
authority to own their respective properties and conduct their
respective business as described in the Final Prospectus;
(ii) the Company is qualified 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;
each of the Company's Significant Subsidiaries is qualified as a
foreign corporation and is in good standing under the laws of each
jurisdiction wherein such Significant Subsidiary owns or leases
material properties;
(iii) all of the authorized shares of capital stock of the
Significant Subsidiaries have been duly authorized and are fully
paid and nonassessable; except as otherwise set forth in the Final
Prospectus, all outstanding shares of capital stock of each
Significant Subsidiary 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, any other
security interests, claims, liens or encumbrances;
(iv) the Securities conform as to legal matters to the
description thereof contained in the Final Prospectus;
[(v) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act,
and, assuming due authorization, execution and delivery by the
Trustee, constitutes a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms
except as may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the rights of
creditors generally and (ii) principles of equity, whether
considered in law or equity; 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, will constitute legal,
valid and binding obligations of the Company entitled to the
benefits of the Indenture;]
(vi) other than as set forth or contemplated in the
Prospectus, to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company
or any of its subsidiaries is a party or to which any property of
the Company or its subsidiaries is the subject which, individually
or in the aggregate, are reasonably expected by the Company to have
a material adverse effect on the Company or its subsidiaries taken
as a whole (a "Material Adverse Effect"); to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and such counsel
does not know of any contracts or other documents of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Final
Prospectus which are not filed or described as required;
(vii) the Registration Statement has become effective under
the Act and to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and not withdrawn and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act and 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);
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) the performance by the Company of its obligations under
this Agreement and the consummation of the transactions contemplated
herein will not result in any violation of the provisions of the
Articles of Incorporation or Bylaws of the Company or, to the
knowledge of such counsel, any applicable law or statute or any
order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company and its subsidiaries or
any of their respective properties which is reasonably expected to
have a Material Adverse Effect;
(x) to the knowledge of such counsel, no consent, approval,
authorization or order of any court or governmental agency or body
is required for the consummation by the Company of the transactions
contemplated herein, 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; and
(xi) to the knowledge of such counsel, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement, other than rights which
have been satisfied or rights which were not exercised after due
notice thereof.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
independent public accountants of the Company and Underwriters at which
the contents of the Registration Statement, the Basic Prospectus, the
Preliminary Final Prospectus and the Final Prospectus were discussed and
although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Basic Prospectus,
the Preliminary Final Prospectus or the Final Prospectus, nothing has
caused them to believe that the Registration Statement, the Basic
Prospectus, the Preliminary Final Prospectus or the Final Prospectus, as
of their respective effective or issue dates and as of the date of such
counsel's opinion, 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, in the light of the
circumstances under which they were made, not misleading (it being
understood that, in each case, such counsel need express no view with
respect to the financial statements and other financial and statistical
data included in the Registration Statement, the Basic Prospectus, the
Preliminary Final Prospectus and the Final Prospectus) and that the
Registration Statement, the Basic Prospectus, the Preliminary Final
Prospectus and the Final Prospectus as of their respective effective dates
and as of the date of such counsels opinion compiled as to form in all
material respects to the requirements of the Act and the applicable
published rules and regulations thereunder (it being understood that, in
each case, such counsel need express no view with respect to the financial
statements and other financial and statistical data included in the
Registration Statement, the Basic Prospectus, the Preliminary Final
Prospectus and the Final Prospectus).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of New York, the Commonwealth of Virginia 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
reasonably 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 Representatives shall have received from Cravath, Swaine &
Xxxxx, counsel for the Underwriters, such opinion or opinion, dated the
Closing Date, with respect to the issuance and sale of the Securities,
[the Indenture,] 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.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chief Financial Officer and
Executive Vice President and Vice President (Finance), dated the Closing
Date, to the effect that the signer of such certificate has 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 of
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;
(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 Company's knowledge,
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),[prospects], 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).
(e) At the Execution Time and at the Closing Date, Ernst & Young LLP
shall have furnished to the Representatives a letter or letters (which may
refer to letters previously delivered to the Representatives), dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by
them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations;
(ii) on the basis of a reading, and limited review in
accordance with standards established by the American Institute of
Certified Public Accountants, of the latest unaudited financial
statements made available by the Company and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and the audit committee of
the Company and its subsidiaries, and inquiries of certain officials
of the Company who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions and
events subsequent to the date of the most recent audited financial
statements in or incorporated in the Final Prospectus, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus do not comply in form in all material respects with
applicable accounting requirements and with the published
rules and regulations of the Commission with respect to
financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; and said
unaudited financial statements are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial
statements included or incorporated in the Registration
Statement and the Final Prospectus;
(2) with respect to the period subsequent to the date of
the most recent financial statements (other than any capsule
information), audited or unaudited, in or incorporated in the
Registration Statement and the Final Prospectus, there were
any changes, at a specified date not more than five business
days prior to the date of the letter, in the long-term debt,
working capital or shareholder's equity of the Company and its
subsidiaries as compared with the amounts shown on the most
recent consolidated balance sheet included or incorporated in
the Registration Statement and the Final Prospectus, or for
the period from the date of the most recent financial
statements included or incorporated in the Registration
Statement and the Final Prospectus to such specified date
there were any decreases, as compared with the corresponding
period in the preceding year, in net sales, in income before
income taxes, or in total or per share amounts of net income,
except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by
an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives;
(3) the information included in the Registration
Statement and Prospectus in response to Regulation S-K, Item
301 (Selected Financial Data), Item 302 (Supplementary
Financial Information), Item 402 (Executive Compensation) and
Item 503(d) (Ratio of Earnings to Fixed Charges) is not in
conformity with the applicable disclosure requirements of
Regulation S-K; or
(4) the amounts included in any unaudited "capsule"
information included or incorporated in the Registration
Statement and the Final Prospectus do not agree with the
amounts set forth in the unaudited financial statements for
the same periods or were not determined on a basis
substantially consistent with that of the corresponding
amounts in the audited financial statements included or
incorporated in the Registration Statement and the Final
Prospectus and in conformity with generally accepted
accounting principles; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Final Prospectus and in
Exhibit 12 to the Registration Statement, including the information
included or incorporated in Items 1, 5, 6, 7, 8, 9, and 11 of the
Company's 1998 Annual Report on Form 10-K, incorporated in the
Registration Statement and the Final Prospectus, and the information
included in the "Management's Discussion and Analysis of Financial
Condition and Results of Operations" included or incorporated in the
Registration Statement and the Final Prospectus, agrees with the
accounting records of the Company and its subsidiaries, excluding
any questions of legal interpretation;
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated in the Registration
Statement and the Prospectus (the "pro forma financial statements");
carrying out certain specified procedures; inquiries of certain
officials of the Company who have responsibility for financial and
accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts
in the pro forma financial statements, nothing came to their
attention which caused them to believe that the pro forma financial
statements do not comply in form in all material respects with the
applicable accounting requirements of Rule 11-02 of Regulation S-X
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of such statements.
References to the Final Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) At the Execution Time and at the Closing Date, KPMG Peat Marwick
LLP shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form
and substance satisfactory to the Representatives, confirming that they
are independent accountants within the meaning of the Act and the Exchange
Act and the respective applicable published rules and regulations
thereunder and stating in effect that in their opinion the audited
financial statements and financial statement schedules of FF Holdings
Corp./Farm Fresh, Inc. and Dart Group Corporation included or incorporated
in the Registration Statement and the Prospectus and reported on by them
comply in form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the related published
rules and regulations.
References to the Prospectus in this paragraph (f) include any
supplement thereto at the date of the letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive 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 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the business or properties of the Company and its subsidiaries,
the effect of which, in any case referred to in clause (i) or (ii) above,
is, in the 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 any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate an improvement in the rating of any of
the Company's debt securities.
[(i) The Securities shall have been listed and admitted and
authorized for trading on the New York Stock Exchange, and satisfactory
evidence of such actions shall have been provided to the Representatives.]
[(j) On the Closing Date, the Company shall have furnished to the
Representatives that the net proceeds will be used for evidence
satisfactory to the Representatives of the payment of at least $ million
of the principal amount outstanding under [the term loan provisions of the
Bank Credit Facilities] (as defined in the Prospectus).]
(k) 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.
If any of the conditions specified in this Section 6 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 counsel for the Underwriters, 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
cancelation shall be given to the Company in writing or by telephone or telecopy
confirmed in writing.
7. 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 6 hereof is not satisfied
[because of any termination pursuant to Section 10 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 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.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of 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 in 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 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) this indemnity with respect to any
Preliminary Final Prospectus or Basic Prospectus shall not inure to the
benefit of any Underwriter (or any director, officer, employee or agent of
such 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 there was not sent or given to
such person a copy of the Final Prospectus (or the Final Prospectus as
then amended or supplemented) (exclusive of material 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 Preliminary Final Prospectus or Basic Prospectus was corrected in
such Final Prospectus (or Final Prospectus as so amended or supplemented)
[and the Company previously furnished copies thereof to such Underwriters]
and (ii) 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 inclusion
therein. 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 inclusion in 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 and under the heading "Underwriting", respectively, in the
Preliminary Final Prospectus and the Final Prospectus] constitute the only
information furnished in writing by or on behalf of any of the
Underwriters for inclusion in the document 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 8 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 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph
(a) or (b) above unless and to the extent it did not otherwise learn of
such action and such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a)
or (b) above or (d) below. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, 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,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying
party will not, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified parties are actual or potential parties to
such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An
indemnifying party shall not be liable for any settlement of any action,
claim, suit or proceeding effected without its consent.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company and by the Underwriters from the offering of the Securities;
provided, however, that 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 or commission applicable to the Securities purchased
by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence [is unavailable for any reason] [is not
permitted by applicable law], the Company and the Underwriters shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and of the
Underwriters in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses), and benefits
received by the Underwriters shall be deemed to be equal to the total
underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or the Underwriters [and the portion
relative to intent, knowledge, access to information and opportunity to
correct such statement or omission]. The Company and the Underwriters
agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), 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 8, each
person who controls an Underwriter within the meaning of either the Act or
the Exchange Act and each director, officer, employee and agent of an
Underwriter 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 the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any Underwriter shall fail to
purchase and pay for any of the Securities agreed to be purchased by such
Underwriter hereunder and such failure to purchase shall constitute a default in
the performance of its obligations under this Agreement, the other Underwriters
shall be obligated to take up and pay for the Securities which the defaulting
Underwriter agreed but failed to purchase; provided, however, that in the event
that the aggregate amount of Securities which the defaulting Underwriter agreed
but failed to purchase shall exceed 10% of the aggregate amount of Securities
set forth in Schedule II hereto, the other 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 9, 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.
10. 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 Stock Exchange or trading in securities generally on
the New York Stock Exchange or the National Association of Securities Dealers
Automated Quotation National Market System shall have been suspended or limited
or minimum prices shall have been established on such Exchange or Market System,
(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 escalation
of hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such as
to make it, in the judgment of the Representatives, impracticable or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
the Final Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the 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 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancelation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telecopied and confirmed to them, at the address specified in
Schedule I hereto; or, if sent to the Company, will be mailed, delivered or
telecopied and confirmed to it at X.X. Xxx 00000, Xxxxxxxx, Xxxxxxxx 00000,
telecopy (000) 000-0000, attention of the legal department.
13. 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 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall be an original, and together shall constitute
one and the same instrument.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
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 each of the Underwriters.
Very truly yours,
Richfood Holdings, Inc.
By:
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
[Names of Representatives]
By: [Name of Lead Underwriter]
By:
Name:
Title:
For itself and the other
Underwriters named
in Schedule II to the
foregoing Agreement
