1
EXHIBIT 1.1
EXECUTION VERSION
$160,000,000
NEW WORLD PASTA COMPANY
9 1/4% Senior Subordinated Notes due 2009
PURCHASE AGREEMENT
February 11, 1999
2
Xxxxxx Xxxxxxx & Co. Incorporated
Scotia Capital Markets (USA) Inc..
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
New World Pasta Company, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several purchasers named in Schedule I hereto
(the "INITIAL PURCHASERS") $160,000,000 principal amount of its 9 1/4% Senior
Subordinated Notes due 2009 (thE "SECURITIES") to be issued pursuant to the
provisions of an Indenture dated as of February 19, 1999 (the "INDENTURE")
between the Company and The Bank of New York, as Trustee (the "TRUSTEE").
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act and in offshore transactions in reliance
on Regulation S under the Securities Act ("REGULATION S").
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities, the terms of the
offering and a description of the Company. As used herein, the term "Memorandum"
shall mean, as of any date or time referred to in this Agreement, the most
recent offering memorandum (whether the Preliminary Memorandum or the Final
Memorandum, including any amendment or supplement to either such document) and
including any exhibits and schedules thereto and shall include in each case the
documents incorporated by reference therein, if any.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, you that:
(a) The Preliminary Memorandum as of its date did not contain
and the Final Memorandum, as of its date did not, and on the Closing
Date (as defined in Section 4) will not, contain any untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in either Memorandum based upon information relating to any
Initial Purchaser furnished to the Company in writing by
1
3
such Initial Purchaser through you expressly for use therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in each Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification
(such jurisdictions being set forth on Annex I hereto), except to the
extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the business, condition
(financial or otherwise), performance, properties, assets or
liabilities (contingent or otherwise) of the Company and its
subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly organized, is
validly existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization, has the limited
liability company power and authority to own its property and to
conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification (such jurisdictions
being set forth on Annex I hereto), except to the extent that the
failure to be so qualified or be in good standing would not have a
Material Adverse Effect; all of the issued membership interests of each
subsidiary of the Company have been duly and validly authorized and
issued and are owned directly by the Company, free and clear of all
liens, encumbrances, defects, equities or claims (collectively,
"LIENS"), except for Liens contemplated by the Senior Credit Facilities
(as defined in the Memorandum). Pasta Group, L.L.C. and Winchester
Pasta, L.L.C. are the Company's only subsidiaries.
(d) This Agreement has been duly authorized, executed and
delivered by the Company and each Subsidiary Guarantor (as defined).
(e) The Securities have been duly authorized, and on the
Closing Date will have been duly executed and delivered, by the
Company. When the Securities are (i) executed and authenticated in
accordance with the provisions of the Indenture, (ii) delivered to and
paid for by the Initial Purchasers in accordance with the terms of this
Agreement and (iii) the Indenture has been duly executed and delivered
by the Company (assuming due authorization, execution and delivery
thereof by the Trustee) and the Registration Rights Agreement has been
duly executed and delivered by the Company (assuming the due
authorization, execution and delivery thereof by the Initial
Purchasers), the Securities will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally or (ii)
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), and will be entitled
to the benefits of the Indenture and
2
4
the Registration Rights Agreement pursuant to which such Securities are
to be issued.
(f) Each of the Indenture and the Registration Rights
Agreement has been duly authorized, and on the Closing Date will have
been duly executed and delivered, by the Company and the Subsidiary
Guarantors. Each of the Indenture and the Registration Rights Agreement
will, upon the due authorization, execution and delivery thereof by the
parties thereto, be a valid and binding agreement of the Company and
the Subsidiary Guarantors, enforceable in accordance with its terms,
except to the extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally
or (ii) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity) and
except to the extent that rights to indemnification and contribution
contained therein may be limited by state or federal securities laws or
the public policy underlying such laws.
(g) Each guarantee by any subsidiary of the Company (each such
subsidiary, a "SUBSIDIARY GUARANTOR") of the Company's obligations
under the Indenture or the Securities (each, a "GUARANTEE") has been
duly authorized by, and on the Closing Date will have been duly
executed and delivered by, and will upon such execution and delivery be
a valid and binding agreement of, such Subsidiary Guarantor,
enforceable in accordance with its terms, except to the extent that
enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally or (ii) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under this Agreement, the
Indenture, the Registration Rights Agreement and the Securities will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company or its subsidiaries taken as a whole or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by Federal and
state securities laws with respect to the Company's obligations under
the Registration Rights Agreement.
(i) The execution and delivery by each Subsidiary Guarantor
of, and the performance by such Subsidiary Guarantor of its obligations
under, its Subsidiary Guarantee, the Indenture, the Registration Rights
Agreement and the Securities will not contravene any provision of
applicable law or the organizational documents of such
3
5
Subsidiary Guarantor or any agreement or other instrument binding upon
such Subsidiary Guarantor that is material to the Company and the
Subsidiary Guarantors, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction
over such Subsidiary Guarantor, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency is
required for the performance by such Subsidiary Guarantor of its
obligations under its Subsidiary Guarantee, the Indenture, the
Registration Rights Agreement or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by Federal and
state securities laws with respect to the Subsidiary Guarantor's
obligations under the Registration Rights Agreement.
(j) Subsequent to the respective dates as of which information
is given in the Memorandum, (1) the Company and its subsidiaries have
not incurred any material liability or obligation, direct or
contingent, nor entered into any material transaction not in the
ordinary course of business; (2) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (3) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company and its subsidiaries, except in each case as described
in the Memorandum.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in each Memorandum.
(l) 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 of the properties of the Company or any of its
subsidiaries is subject other than proceedings accurately described in
all material respects in each Memorandum and proceedings that would not
have a Material Adverse Effect, or that would not have a material
adverse effect on the power or ability of the Company or any Subsidiary
Guarantor to perform its obligations under this Agreement, the
Indenture, the Registration Rights Agreement or the Securities or any
Guarantee, as applicable, or to consummate the transactions
contemplated by the Final Memorandum.
(m) No material labor dispute with the employees of the
Company or any of its subsidiaries exists, except as described in the
Memorandum, or, to the knowledge of the Company, is imminent; and the
Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could have a Material Adverse Effect.
(n) The Company and its subsidiaries possess all such
certificates,
4
6
authorizations and permits issued by federal, state or foreign
regulatory authorities as are necessary to conduct the business
currently conducted by them as set forth in the Memorandum, except
where the failure to have any such permit, certificate or authorization
would not, singly or in the aggregate, have a Material Adverse Effect,
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect, except as described in
the Memorandum.
(o) Except as described in the Memorandum, the Company and its
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("ENVIRONMENTAL
LAWS"), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a Material Adverse Effect.
(p) Except as described in the Memorandum, there are no costs
or liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for
clean-up, closure of properties or compliance with Environmental Laws
or any permit, license or approval, any related constraints on
operating activities and any potential liabilities to third parties)
which would, singly or in the aggregate, have a Material Adverse
Effect.
(q) Except as described in the Memorandum, the Company and
each of its subsidiaries is in the process of implementing a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's
general or specific authorizations; (2) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain asset
accountability; (3) access to assets is permitted only in accordance
with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences.
(r) Neither the Company nor any subsidiary is, and after
giving effect to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final
Memorandum, will be an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
(s) The Company and its subsidiaries have good and marketable
title in fee
5
7
simple to all real property and good and marketable title to all
personal property owned by them which is material to the business of
the Company and its subsidiaries, in each case free and clear of all
Liens, except such as are described in the Memorandum or are
contemplated by the Senior Credit Facilities or such as do not
materially and adversely affect the value of such property and do not
materially and adversely interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not materially
and adversely interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in
each case except as described in the Memorandum.
(t) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and
trade names currently employed by them in connection with the business
now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of infringement of or conflict
with asserted rights of others with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a Material Adverse Effect.
(u) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the businesses in
which the Company and its subsidiaries are currently engaged.
(v) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the
Company has directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any
security (as defined in the Securities Act) which is or will be
integrated with the sale of the Securities in a manner that would
require the registration under the Securities Act of the Securities or
(ii) engaged in any form of general solicitation or general advertising
in connection with the offering of the Securities (as those terms are
used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the
Securities Act.
(w) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries will be affected by the Year
2000 Problem (that is, any significant risk that computer hardware or
software applications used by the Company and its subsidiaries will
not, in the case of dates or time periods occurring after December 31,
1999, function at least as effectively as in the case of dates or times
periods occurring prior to January 1, 2000); as a result of such
review, the Company does not believe, that (A) there are any
6
8
issues related to the Company's preparedness to address the Year 2000
Problem that are of a character required to be described or referred to
in the Memorandum which have not been accurately described in the
Memorandum and (B) the Year 2000 Problem will have a Material Adverse
Effect.
(x) None of the Company, its Affiliates or any person acting
on its or their behalf has engaged or will engage in any directed
selling efforts (within the meaning of Regulation S) with respect to
the Securities and the Company and its Affiliates and any person acting
on its or their behalf have complied and will comply with the offering
restrictions requirement of Regulation S, except no representation,
warranty or agreement is made by the Company in this paragraph with
respect to the Initial Purchasers.
(y) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner
contemplated by this Agreement to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
(z) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(aa) On the date hereof, the Company shall have given notice
to all of the holders of its Senior Subordinated Increasing Rate Notes
due 2000 (the "BRIDGE NOTES") that the Bridge Notes are to be redeemed
on the Closing Date.
(bb) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair
saleable value of the assets of each of the Company and each of its
subsidiaries (each on a consolidated basis) will exceed the sum of its
stated liabilities and identified contingent liabilities; none of the
Company or any of its subsidiaries (each on a consolidated basis) is,
nor will any of the Company or any of its subsidiaries (each on a
consolidated basis) be, after giving effect to the execution, delivery
and performance of this Agreement, and the consummation of the
transactions contemplated hereby, (i) left with unreasonably small
capital with which to carry on its business as it is currently or
proposed to be conducted, (ii) unable to pay its debts (contingent or
otherwise) as they mature or otherwise become due or (iii) otherwise
insolvent.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective principal amount of Securities set forth in
Schedule I hereto opposite its name at a purchase price of 100% of the principal
amount thereof less a discount of 2.6796875% of such principal amount, plus
accrued interest, if any, to the Closing Date (the "PURCHASE PRICE").
7
9
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period beginning on the date hereof and continuing to and
including the Closing Date, offer, sell, contract to sell or otherwise issue any
debt of the Company or warrants to purchase debt of the Company substantially
similar to the Securities (other than the sale of the Securities under this
Agreement).
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Securities shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Securities for the respective accounts of the several
Initial Purchasers at 10:00 a.m., New York City time, on February 19, 1999, or
at such other time on the same date or such other date, not later than February
23, 1999, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
Certificates for the Securities shall be in definitive form or global
form, as specified by you, and registered in such names and in such
denominations as you shall request in writing not later than one full business
day prior to the Closing Date. The certificates evidencing the Securities shall
be delivered to you on the Closing Date for the respective accounts of the
several Initial Purchasers, with any transfer taxes payable in connection with
the transfer of the Securities to the Initial Purchasers duly paid, against
payment of the Purchase Price therefor plus accrued interest, if any, to the
date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Securities on
the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a
8
10
whole, from that set forth in the Final Memorandum (exclusive
of any amendments or supplements thereto subsequent to the
date of this Agreement) that, in your judgment, is material
and adverse and that makes it, in your judgment, impracticable
to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect set forth in Section 5(a)(i) and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, outside
counsel for the Company, dated the Closing Date, to the effect set
forth in Exhibit A. Such opinion shall be rendered to the Initial
Purchasers at the request of the Company and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of White & Case LLP, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit
B.
(e) The Initial Purchasers shall have received on each of the
date hereof and the Closing Date a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Initial Purchasers, from Xxxxxx Xxxxxxxx LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Final
Memorandum; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
6. Covenants of the Company. In further consideration of the agreements
of the Initial Purchasers contained in this Agreement, the Company covenants
with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior
to 5:00 p.m. (New York City time) on the business day next succeeding
the date of this Agreement (or such other date and time as you and we
may mutually agree) and during the period mentioned in Section 6(c), as
many copies of the Final Memorandum, any documents incorporated by
reference therein and any supplements and amendments thereto as you
9
11
may reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its
own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented,
will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including without limitation: (i) the
fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the issuance and sale of the
Securities and all other fees or expenses in connection with the
preparation of each Memorandum and all amendments and supplements
thereto, including all printing costs associated therewith, and the
delivering of copies thereof to the Initial Purchasers, in the
quantities herein above specified, (ii) all costs and expenses related
to the transfer and delivery of the Securities to the Initial
Purchasers, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or legal
investment memorandum in connection with the offer and sale of the
Securities under state securities laws and all expenses in connection
with the qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Initial Purchasers in connection with such qualification and in
connection with the Blue Sky or legal investment memorandum, (iv) any
fees charged by rating agencies for the rating of the Securities, (v)
the fees and expenses, if any, incurred in connection with the
admission of the Securities for trading in PORTAL or any appropriate
market system, (vi) the costs and charges of the Trustee and (vii) the
cost of the preparation, issuance and delivery of the Securities. It is
understood, however, that except as provided in this Section, Section
8, and the last paragraph of Section 10, the Initial Purchasers will
pay all of their costs and expenses, including fees
10
12
and disbursements of their counsel, transfer taxes payable on resale of
any of the Securities by them and any advertising expenses connected
with any offers they may make.
(f) That neither the Company nor any Affiliate will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the Securities Act) which could
be integrated with the sale of the Securities in a manner which would
require the registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain "restricted securities"
within the meaning of the Securities Act, to make available, upon
request, to any seller of such Securities the information specified in
Rule 144A(d)(4) under the Securities Act, unless the Company is then
subject to Section 13 or 15(d) of the Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market.
(j) That none of the Company, its Affiliates or any person
acting on its or their behalf (other than the Initial Purchasers) will
engage in any directed selling efforts (as that term is defined in
Regulation S) with respect to the Securities, and the Company and its
Affiliates and each person acting on its or their behalf (other than
the Initial Purchasers) will comply with the offering restrictions
requirement of Regulation S.
(k) That during the period of two years after the Closing Date
the Company will not, and will not permit any of its affiliates (as
defined in Rule 144 under the Securities Act) to resell any of the
Securities which constitute "restricted securities" under Rule 144 that
have been reacquired by any of them.
(l) That the Company shall apply the Purchase Price as set
forth in the Final Memorandum under the caption "Use of Proceeds."
7. Offering of Securities; Restrictions on Transfer. (a) Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, such Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a
11
13
public offering within the meaning of Section 4(2) of the Securities Act and
(ii) it will solicit offers for such Securities only from, and will offer such
Securities only to, persons that it reasonably believes to be (A) in the case of
offers inside the United States, QIBs and (B) in the case of offers outside the
United States, to persons other than U.S. persons ("FOREIGN PURCHASERS," which
term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)) in reliance upon Regulation S under the Securities Act
that, in each case, in purchasing such Securities are deemed to have represented
and agreed as provided in the Final Memorandum under the caption "Transfer
Restrictions".
(b) Each Initial Purchaser, severally and not jointly, represents,
warrants, and agrees with respect to offers and sales outside the United States
that:
(i) such Initial Purchaser understands that no action has been
or will be taken in any jurisdiction by the Company that would permit a
public offering of the Securities, or possession or distribution of
either Memorandum or any other offering or publicity material relating
to the Securities, in any country or jurisdiction where action for that
purpose is required;
(ii) such Initial Purchaser will comply with all applicable
laws and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own
expense;
(iii) the Securities have not been registered under the
Securities Act and may not be offered or sold within the United States
or to, or for the account or benefit of, U.S. persons except in
accordance with Rule 144A or Regulation S under the Securities Act or
pursuant to another exemption from the registration requirements of the
Securities Act;
(iv) such Initial Purchaser has offered the Securities and
will offer and sell the Securities (A) as part of their distribution at
any time and (B) otherwise until 40 days after the later of the
commencement of the offering and the Closing Date, only in accordance
with Rule 903 of Regulation S or as otherwise permitted in Section
7(a); accordingly, neither such Initial Purchaser, its Affiliates nor
any persons acting on its or their behalf have engaged or will engage
in any directed selling efforts (within the meaning of Regulation S)
with respect to the Securities, and any such Initial Purchaser, its
Affiliates and any such persons have complied and will comply with the
offering restrictions requirement of Regulation S;
(v) each Initial Purchaser represents and agrees that (a) it
has not offered or sold, and, prior to the expiration of the period of
six months from the closing date for the issue of the Securities, will
not offer or sell any Securities to persons in the United Kingdom,
except to those persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purpose of
12
14
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995,
(b) it has complied and will comply with all applicable provisions of
the Financial Services Act of 1986, with respect to anything done by it
in relation to the Securities in, from or otherwise involving the
United Kingdom, and (c) it has only issued or passed on and will only
issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Xxx 0000
(Investment Advertisements) (Exemptions) Order 1996, as amended, or is
a person to whom the document may otherwise lawfully be issued or
passed on.
(vi) such Initial Purchaser understands that the Securities
have not been and will not be registered under the Securities and
Exchange Law of Japan, and represents that it has not offered or sold,
and agrees not to offer or sell, directly or indirectly, any Securities
in Japan or for the account of any resident thereof except pursuant to
any exemption from the registration requirements of the Securities and
Exchange Law of Japan and otherwise in compliance with applicable
provisions of Japanese law; and
(vii) such Initial Purchaser agrees that, at or prior to
confirmation of sales of the Securities, it will have sent to each
distributor, dealer or person receiving a selling concession, fee or
other remuneration that purchases Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered and sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the commencement of
the offering and the closing date, except in either case in accordance
with Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meaning given to them by Regulation S."
Terms used in this Section 7(b) have the meanings given to them by Regulation S.
8. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in either Memorandum (as amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein in the light of the circumstances under
which they were made not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged
13
15
untrue statement or omission based upon information relating to any Initial
Purchaser furnished to the Company in writing by such Initial Purchaser through
you expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to the Preliminary Memorandum shall not inure to the
benefit of the Initial Purchaser from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person controlling
such Initial Purchaser, if a copy of the Final Memorandum (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not seen or given by or on behalf of such Initial Purchaser to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Securities to such person, and if the Final
Memorandum (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities, unless such failure is the
result of noncompliance by the Company with Section 6(a) hereof.
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly for use
in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel and the
indemnifying party has agreed to pay the fees and expenses of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm engaged pursuant to clause (ii) of the preceding sentence (in
addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred upon written
request and presentation of invoices. Such firm shall be designated in writing
by Xxxxxx Xxxxxxx & Co. Incorporated, in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties indemnified
pursuant to Section 8(b). The indemnifying party shall not be liable for any
settlement of any
14
16
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. Notwithstanding the immediately preceding sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, an indemnifying party shall
not be liable for any settlement of the nature contemplated by this Section 8(c)
effected without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent that it in good
faith considers such request to be reasonable and (ii) provides written notice
to the indemnified party substantiating the unpaid balance as unreasonable, in
each case prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the Final Memorandum, bear to the
aggregate offering price of the Securities as set forth in the Final Memorandum.
The relative fault of the Company on the one hand and of the Initial Purchasers
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Initial
15
17
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective principal amount of Securities they have
purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors exceeds
the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section
8 and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation made
by or on behalf of any Initial Purchaser or any person controlling any Initial
Purchaser or by or on behalf of the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
general moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and (b) in the case of any of the events specified in clauses
9(a)(i) through 9(a)(iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Securities on the
terms and in the manner contemplated in the Final Memorandum.
16
18
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities that it or they have agreed to
purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, the other Initial
Purchasers shall be obligated severally in the proportions that the principal
amount of Securities set forth opposite their respective names in Schedule I
bears to the aggregate principal amount of Securities set forth opposite the
names of all such non-defaulting Initial Purchasers, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
on such date; provided that in no event shall the principal amount of Securities
that any Initial Purchaser has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such principal amount of Securities without the written consent of such Initial
Purchaser. If, on the Closing Date any Initial Purchaser or Initial Purchasers
shall fail or refuse to purchase Securities which it or they have agreed to
purchase hereunder on such date and the aggregate principal amount of Securities
with respect to which such default occurs is more than one-tenth of the
aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to you and the Company for the purchase of such
Securities are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either you or the Company shall have the
right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Final Memorandum or in any
other documents or arrangements may be effected. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
17
19
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
NEW WORLD PASTA COMPANY
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President, Finance,
and Chief Financial Officer
PASTA GROUP, L.L.C.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President, Finance,
and Chief Financial Officer
WINCHESTER PASTA, L.L.C.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Vice President, Finance,
and Chief Financial Officer
Accepted as of the date hereof
XXXXXX XXXXXXX & CO. INCORPORATED
SCOTIA CAPITAL MARKETS (USA) INC.
By: XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Vice President
18
20
SCHEDULE I
PRINCIPAL AMOUNT OF
Initial Purchaser SECURITIES TO BE PURCHASED
XXXXXX XXXXXXX & CO. INCORPORATED.................................... $128,000,000
SCOTIA CAPITAL MARKETS (USA) INC..................................... $ 32,000,000
TOTAL: ......................................................... $160,000,000
19
21
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
The opinion of the counsel for the Company, to be delivered pursuant to
Section 5(c) of the Purchase Agreement shall be to the effect that:
A. The Company is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business as described in
the Final Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction set forth on Annex I to the Purchase Agreement.
B. Each of Winchester Pasta, L.L.C. and Pasta Group, L.L.C. is validly
existing as a limited liability company in good standing under the laws of the
jurisdiction of its organization, has the limited liability company power and
authority to own its property and to conduct its business as described in the
Final Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction set forth on Annex I to the Purchase Agreement;
all of the issued membership interests of Winchester Pasta, L.L.C. and Pasta
Group, L.L.C. have been duly and validly authorized and issued, and, based
solely on such counsel's review of the certificate of formation, resolutions and
limited liability company operating agreement, as amended, of such entities, are
owned of record by the Company.
C. The Purchase Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiary Guarantors.
D. The Securities have been duly authorized, executed and delivered by
the Company and, when authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in accordance
with the terms of the Purchase Agreement (assuming due authorization, execution
and delivery of the Indenture by the Trustee and of the Registration Rights
Agreement by the Initial Purchasers), will be valid and binding obligations of
the Company, enforceable in accordance with their terms, except to the extent
that (A) enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and the discretion of the court before which any
proceeding therefor is brought and (B) rights to indemnification and
contribution contained therein may be limited by state or federal securities
laws or the public policy underlying such laws, and will be entitled to the
benefits of the Indenture and the Registration Rights Agreement.
E. Each of the Indenture, the Guarantees and the Registration Rights
Agreement has been duly authorized, executed and delivered by, and (assuming due
authorization, execution and
A-1
22
delivery of the Indenture by the Trustee and of the Registration Rights
Agreement by the Initial Purchasers) is a valid and binding agreement of, the
Company and each Subsidiary Guarantor (to the extent such person is a party
thereto), enforceable in accordance with its terms, except to the extent that
(A) enforcement thereof may be limited by (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether enforceability is considered in a
proceeding at law or in equity) and the discretion of the court before which any
proceeding therefor is brought and (B) rights to indemnification and
contribution contained therein may be limited by state or federal securities
laws or the public policy underlying such laws.
F. The issuance and sale of the Securities by the Company, the
execution and delivery of the Indenture, the Registration Rights Agreement and
the Purchase Agreement by the Company, compliance by the Company with the terms
thereof, and the consummation of the transactions contemplated thereby will not
(a) conflict with the charter or by-laws of the Company, (b) result in any
violation of the General Corporation Law or related regulations of the State of
Delaware, the laws or regulations of the State of New York or the federal laws
or regulations of the United States of America (the "REQUIREMENTS OF LAW") or
(c) constitute a breach of or event of default under the terms of any indenture
or other agreement to which the Company or any of its subsidiaries is a party or
bound which is listed on Schedule 2 hereto, which have been identified to such
counsel in an Officers' Certificate as the only such material agreements to
which the Company is a party (except that such counsel need not express an
opinion as to any covenant, restriction or provision of any such agreement with
respect to financial covenants, ratios or tests or any aspect of the financial
condition or results of operations of the Company or any of its subsidiaries and
such counsel may assume that all such agreements or instruments are governed by
the law of New York or Delaware), or any judgment, order or decree 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 of the
United States or the States of Delaware or New York having jurisdiction over the
Company or any of its subsidiaries (collectively, the "ORDERS"); provided,
however, that such counsel's opinion expressed in this paragraph may be based on
such counsel's review of those Requirements of Law which, in such counsel's
experience, are normally applicable to transactions of the type contemplated by
the Purchase Agreement, but without having made any special investigation (other
than our customary due diligence procedures for transactions of the type
contemplated by the Purchase Agreement) concerning any other Requirements of
Law, and those Orders specifically identified to such counsel by the Company in
an Officers' Certificate as being Orders to which it is subject; provided,
however, that such counsel need express no opinion in this paragraph with
respect to any U.S. federal or state securities laws or blue sky laws,
anti-fraud laws, or the rules and regulations of the National Association of
Securities Dealers, Inc.
G. The execution and delivery of the Indenture, Registration Rights
Agreement, the Purchase Agreement and its Guarantee by each Subsidiary
Guarantor, compliance by such Subsidiary Guarantor with the terms thereof and
the consummation of the transactions
A-2
23
contemplated thereby will not (a) conflict with the organizational documents of
such Subsidiary Guarantor, (b) result in any violation of any Requirements of
Law or (c) constitute a breach of or event of default under the terms of any
indenture or other agreement to which the Company or any of its subsidiaries is
a party or bound which is listed on Schedule 2 hereto, which have been
identified to such counsel in an Officers' Certificate as the only such material
agreements to which such Subsidiary Guarantor is a party (except that such
counsel need not express an opinion as to any covenant, restriction or provision
of any such agreement with respect to financial covenants, ratios or tests or
any aspect of the financial condition or results of operations of the Company or
any of its subsidiaries and such counsel may assume that all such agreements or
instruments are governed by the law of New York or Delaware) or any Orders;
provided, however, that such counsel's opinion expressed in this paragraph may
be based on such counsel's review of those Requirements of Law which, in such
counsel's experience, are normally applicable to transactions of the type
contemplated by the Purchase Agreement, but without having made any special
investigation concerning any other Requirements of Law (other than our customary
due diligence procedures for transactions of the type contemplated by the
Purchase Agreement), and those Orders specifically identified to such counsel by
the Company in an Officers' Certificate as being Orders to which it is subject;
provided, however, that such counsel need express no opinion in this paragraph
with respect to U.S. federal or state securities laws or blue sky laws,
anti-fraud laws, or the rules and regulations of the National Association of
Securities Dealers, Inc.
H. No consent, approval, authorization, order, decree, or qualification
of, or registration or filing with, any federal, Delaware or New York executive,
legislative, judicial, administrative or regulatory body pursuant to any
Requirements of Law (collectively, "CONSENTS") is required for the execution and
delivery of, or the consummation of the transactions contemplated by, the
Purchase Agreement, the Indenture, the Registration Rights Agreement, the
Guarantees or the Securities, except for Consents which have been obtained and
are in full force and effect.
I. To the knowledge of such counsel, 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 of the properties of the Company or any
of its subsidiaries is subject other than proceedings as set forth in the Final
Memorandum and proceedings which would not reasonably be expected to have a
material adverse effect on the Company and its subsidiaries, taken as a whole,
or on the power or ability of the Company or any Subsidiary Guarantor to perform
its obligations under the Purchase Agreement, the Indenture, the Registration
Rights Agreement or the Securities or any Guarantee, as applicable, or to
consummate the transactions contemplated by the Final Memorandum.
J. The Company is not, and after giving effect to the offering and sale
of the Securities and the application of the proceeds thereof as described in
the Final Memorandum, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
A-3
24
K. The statements in the Final Memorandum under the captions
"Description of Notes", "Description of Other Indebtedness", "Description of
Preferred Stock", "Exchange Offer; Registration Rights", "Private Placement" and
"Transfer Restrictions", insofar as such statements constitute summaries of the
documents, or provisions of documents, referred to therein, fairly summarize the
matters referred to therein.
L. Although the discussion in the Final Memorandum under the caption
"Certain United States Federal Income Tax Considerations" does not purport to
discuss all possible U.S. federal income tax consequences of the purchase,
ownership and disposition of the Securities, such discussion constitutes, in all
material respects, a fair and accurate summary of the U.S. federal income tax
consequences of the purchase, ownership and disposition of the Securities under
current law.
M. Assuming (1) the accuracy of the representations and warranties of
the Company set forth in Sections 1(v), 1(x), 1(z) and of the Initial
Purchasers' representations and warranties set forth in Section 7 of the
Purchase Agreement, (2) the due performance by the Company of the agreements set
forth in Sections 6(f), 6(g) and 6(j) of the Purchase Agreement and the due
performance by the Initial Purchasers of the agreements set forth in Section 7
of the Purchase Agreement and (3) compliance by the Initial Purchasers with the
offering and transfer procedures and restrictions described elsewhere in the
Purchase Agreement and in the Final Memorandum, the offer and sale to the
Initial Purchasers, and the initial resale by the Initial Purchasers of the
Securities in the manner contemplated by this Agreement and the Final
Memorandum, do not require registration under the Securities Act and the
Indenture does not require qualification under the Trust Indenture Act of 1939,
as amended, it being understood that such counsel does not express any opinion
as to any subsequent resale of any Security.
Such counsel shall also state that, in the course of preparation by the
Company of the Final Memorandum, such counsel has participated in conferences
with certain directors, officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Initial Purchasers and representatives of counsel for the
Initial Purchasers, at which conferences the contents of the Final Memorandum
and related matters were discussed and, although such counsel is not passing
upon, and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Final Memorandum and has made no
independent check or verification thereof (except to the extent stated in
paragraphs (K) and (L) hereof), on the basis of the foregoing, no facts have
come to such counsel's attention which have caused such counsel to believe that
the Final Memorandum, as of its date and as of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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 (it being under
stood that such counsel need not express any opinion or belief with respect to
the financial statements and schedules and other financial and accounting data
included in or omitted from the Final Memorandum).
A-4
25
Such opinions may be limited to the General Corporation Law of the
State of Delaware and the laws of the State of New York and the federal laws of
the United States and may be subject to such counsel's customary assumptions,
qualifications and exceptions to the extent reasonably acceptable to counsel for
the Initial Purchasers.
References to the Final Memorandum in this Exhibit A shall include any
amendment or supplement thereto prepared on or prior to the Closing Date.
A-5
26
EXHIBIT B
OPINION OF WHITE & CASE LLP
The opinion of White & Case LLP to be delivered pursuant to Section
5(d) of the Purchase Agreement shall be to the effect that:
A. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
B. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
C. Each of the Indenture and the Registration Rights Agreement has been
duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights generally
and by general equitable principles regardless of whether the issue of
enforceability is considered in a proceeding in equity or at law and except as
rights to indemnification and contribution under the Registration Rights
Agreement may be limited under applicable law.
D. The statements in the Final Memorandum under the captions
"Description of Notes", "Private Placement" and "Transfer Restrictions", insofar
as such statements constitute summaries of the documents, or provisions of
documents, referred to therein, fairly summarize the matters referred to
therein.
E. Such counsel has no reason to believe that (except for financial
statements and schedules and other financial and statistical data as to which
such counsel need not express any belief) the Final Memorandum when issued
contained, or as of the date such opinion is delivered contains, any untrue
statement of a material fact or omitted or omits 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.
F. Based upon the representations, warranties and agreements of the
Company in Sections 1(v), 1(x), 1(z), 6(f), 6(g) and 6(j) of the Purchase
Agreement and of the Initial Purchasers in Section 7 of the Purchase Agreement,
it is not necessary in connection with the
B-1
27
offer, sale and delivery of the Securities to the Initial Purchasers under the
Purchase Agreement or in connection with the initial resale of such Securities
by the Initial Purchasers in accordance with Section 7 of the Purchase Agreement
to register the Securities under the Securities Act of 1933 or to qualify the
Indenture under the Trust Indenture Act of 1939, it being understood that no
opinion is expressed as to any subsequent resale of any Security.
With respect to paragraph E above, White & Case LLP may state that
their opinion and belief are based upon their participation in the preparation
of the Final Memorandum (and any amendments or supplements thereto) and review
and discussion of the contents thereof (including the review of, but not
participation in the preparation of, the incorporated documents), but are
without independent check or verification except as specified.
B-2
28
ANNEX I
Jurisdictions in which the Company is qualified to do business:
California
Kansas
Nebraska
Pennsylvania
Jurisdictions in which Pasta Group, L.L.C. is qualified to do business:
California
Colorado
Florida
Kentucky
Nebraska
New York
North Carolina
Ohio
Oregon
Pennsylvania
Texas
Washington
Jurisdictions in which Winchester Pasta, L.L.C. is qualified to do business:
Virginia
I-1
