Exhibit 1
THE EARTHGRAINS COMPANY
Senior Debt Securities
Underwriting Agreement
April __, 1999
X.X. XXXXXX SECURITIES INC.
as Representative of the several
Underwriters named in Schedule
II hereto
c/o X.X. Xxxxxx Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The Earthgrains Company, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its senior debt securities
identified in Schedule I hereto (the "Securities"), to be issued under the
indenture specified in Schedule I hereto (the "Indenture") between the Company
and the Trustee identified in such Schedule (the "Trustee"). If the firm or
firms listed in Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and "Representatives", as used
herein, shall each be deemed to refer to such firm or firms.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of Securities
Act of 1933, as amended, and the rules and regulations of the Commission
thereunder (collectively, the "Securities Act"), a registration statement (the
file number of which is set forth in Schedule I hereto) on Form S-3, relating to
certain senior debt securities (the "Shelf Securities") to be issued from time
to time by the Company. The Company has also filed with, or proposes to file
with, the Commission pursuant to Rule 424 under the Securities Act a prospectus
supplement specifically relating to the Securities. The registration statement
as amended to the date of this Agreement is hereinafter referred to as the
"Registration Statement" and the related prospectus covering the Shelf
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Basic Prospectus". The Basic Prospectus as
supplemented by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the Securities is
hereinafter referred to as the "Prospectus". If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. Any reference in this Agreement to the Registration
Statement, the Basic Prospectus, any preliminary form of Prospectus (a
"preliminary prospectus") previously filed with the Commission pursuant to Rule
424 or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act which were filed under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") on or before the date of this Agreement or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be; and any reference to "amend", "amendment" or "supple ment"
with respect to the Registration Statement, the Basic Prospectus, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed under the Exchange Act after the date of this Agreement, or
the date of the Basic Prospectus, any preliminary prospectus or the Prospectus,
as the case may be, which are deemed to be incorporated by reference therein.
The Company hereby agrees with the Underwriters as follows:
1. The Company agrees to issue and sell the Securities to the several
Underwriters as hereinafter provided, and each Underwriter, on the basis of the
representa tions and warranties herein contained, but subject to the conditions
hereinafter stated, agrees to purchase, severally and not jointly, from the
Company the respective principal amount of Securities set forth opposite such
Underwriter's name in Schedule II hereto at the purchase price set forth in
Schedule I hereto plus accrued interest, if any, from the date specified in
Schedule I hereto to the date of payment and delivery.
2. The Company understands that the several Underwriters intend (i) to
make a public offering of their respective portions of the Securities and (ii)
initially to offer the Securities upon the terms set forth in the Prospectus.
3. Payment for the Securities shall be made by wire transfer in
immediately available funds to the account specified by the Company to the
Representatives, no later than noon the Business Day (as defined below) prior to
the Closing Date (as defined below), at the place set forth in Schedule I hereto
(or at such other time and place on the same or such other date, not later than
the fifth Business Day thereafter, as you and the Company may agree in writing).
As used herein, the term "Business Day" means any day other than a day on which
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banks are permitted or required to be closed in New York City. The time and date
of such payment and delivery with respect to the Securities are referred to
herein as the "Closing Date".
Payment for the Securities shall be made against delivery to the
nominee of The Depository Trust Company for the respective accounts of the
several Underwriters of the Securities of one or more global notes (the "Global
Notes" ) representing the Securities. The Global Notes will be made available
for inspection by the Representatives at the office of the Bank of New York, the
trustee (the "Trustee"), not later than 1:00 P.M., New York City time, on the
Business Day prior to the Closing Date.
4. The Company represents and warrants to each Underwriter that:
(a) the Registration Statement has been declared effective by
the Commission under the Securities Act; no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose has been instituted or, to the knowledge of
the Company, threatened by the Commission; and the Registration
Statement and Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) comply, or
will comply, as the case may be, in all material respects with the
Securities Act and the Trust Indenture Act of 1939, as amended, and the
rules and regulations of the Commission thereunder (collectively, the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the date of the Prospectus and any amendment or
supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and the
Prospectus, as amended or supplemented at the Closing Date, if
applicable, 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; provided, however, that the foregoing representations and
warranties shall not apply to (i) that part of the Registration
Statement which constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee,
and (ii) statements or omissions in the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through the Representatives expressly for use therein;
(b) the documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the
case may be, conformed in all material respects to the requirements of
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the Exchange Act, as applicable, and none of such documents contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects
to the requirements of the Exchange Act, as applicable, and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(c) the financial statements, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus present fairly the consolidated financial position of
the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their
consolidated cash flows for the periods specified; said financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis, and the supporting
schedules included or incorporated by reference in the Registration
Statement present fairly the information required to be stated therein;
and the pro forma financial information, and the related notes thereto,
included or incorporated by reference in the Registration Statement and
the Prospectus has been prepared in accordance with the applicable
requirements of the Securities Act and the Exchange Act, as applicable
and is based upon good faith estimates and assumptions believed by the
Company to be reasonable;
(d) since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material change in the capital stock of the Company or any
of its subsidiaries, except for the issuance by the Company of capital
stock on exercise of previously-issued stock options, (ii) any material
change in the long term debt of the Company, except the incurrence by
the Company or any of its subsidiaries of additional long term debt in
connection with acquisition transaction sin the ordinary course of
business, or (iii) any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business prospects, financial position, or results of operations of
the Company and its subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus; and except as set forth
or contemplated in the Prospectus neither the Company nor any of its
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subsidiaries has entered into any transaction or agreement material to
the Company and its subsidiaries taken as a whole, except for
acquisition transactions in the ordinary course of business;
(e) 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 power and authority (corporate and
other) to own its properties and conduct its business as described in
the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties, or
conducts any business, so as to require such qualification, other than
where the failure to be so qualified or in good standing would not have
a material adverse effect on the Company and its subsidiaries taken as
a whole;
(f) each of the Company's "significant subsidiaries" (as
defined in Regulation S-X promulgated by the Commission) has been duly
incorporated and is validly existing as a corporation under the laws of
its jurisdiction of incorpora tion, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, other than where the
failure to be so qualified or in good standing would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole; and all the outstanding shares of capital stock of each
subsidiary of the Company have been duly authorized and validly issued,
are fully-paid and non-assessable and (except in the case of foreign
subsidiaries, for directors' qualifying shares are owned by the
Company, directly or indirectly, free and clear of all liens,
encumbrances, security interests and claims;
(g) this Agreement has been duly authorized, executed and
delivered by the Company;
(h) the Securities have been duly authorized, and, when
executed, authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to
this Agreement, will constitute valid and binding obligations of the
Company entitled to the benefits provided by the Indenture enforceable
against the Company in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and the effect of general principles of
equity; the Indenture has been duly authorized and upon effectiveness
of the Registration Statement will have been duly qualified under the
Trust Indenture Act and, when executed and delivered by the Company
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and the Trustee, the Indenture will constitute a valid and binding
agreement enforceable against the Company in accordance with its
terms, subject to (i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights, and (ii) the effect of
general principles of equity;
(i) the issue and sale of the Securities and the performance
by the Company of all its obligations under the Securities, the
Indenture and this Agreement and the consummation of the transactions
herein and therein contem plated will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, nor
will any such action result in any violation of the provisions of the
Certificate of Incorpora tion or the By-Laws of the Company or any
applicable law or statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the Company,
its subsidiaries or any of their respective properties, which
violations would have a material adverse effect on the Company and the
subsidiar ies taken as a whole; and no consent, approval,
authorization, order, license, registration or qualification of or with
any such court or governmental agency or body is required for the issue
and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or the Indenture, except
such consents, approvals, authorizations, orders, licenses,
registrations or qualifications as have been obtained under the
Securities Act, the Trust Indenture Act and as may be required under
state securities or Blue Sky Laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(j) there are no legal or governmental investigations, actions,
suits or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
or any of their respective properties or to which the Company or any
of its subsidiaries is or may be a party or to which any property of
the Company or any of its subsidiaries is or may be the subject that
are required to be described in the Prospectus or the Registration
Statement and are not so described; and there are no statutes,
regulations, contracts or other documents that are required to be
filed or incorporated by reference as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Prospectus which are not filed, or described or incorporated by
reference as required;
(k) the Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
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company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act");
(l) 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; as a result of such review, the Company has no reason to
believe, and does not believe, that the Year 2000 Problem will have a
material adverse effect on the Company and its subsidiaries taken as a
whole. Except as disclosed in the Prospectus, the Company and its
subsidiaries (i) will not incur significant operating expenses or costs
to ensure that their operating and information systems will be year
2000 compliant and (ii) reasonably believe, after due inquiry, that the
suppliers, vendors, customers or other material third parties used or
served by the Company and such subsidiaries are or will be year 2000
compliant in a timely manner, except to the extent that a failure to
become year 2000 compliant by any supplier, vendor, customer or
material third party would not have a material adverse effect on the
Company and its subsidiaries taken as a whole. As used herein, the
"Year 2000 Problem" means any significant risk that computer hardware
or software used in the receipt, transmission, processing,
manipulation, storage, retrieval, transmission or other utilization of
data or in the operation of mechanical or electrical systems of any
kind 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 time periods occurring prior to January 1, 2000.
5. The Company covenants and agrees with each of the several
Underwriters as follows:
(a) to file the Prospectus pursuant to Rule 424 under the
Securities Act not later than the Commission's close of business on the
second Business Day following the date of determination of the offering
price of the Securities or, if applicable, such earlier time as may be
required by Rule 424(b);
(b) to furnish to each Representative and counsel for the
Underwriters, at the expense of the Company, a signed copy of the
Registration Statement (as originally filed) and each amendment
thereto, in each case including exhibits and documents incorporated by
reference therein and, during the period mentioned in paragraph (e)
below, to furnish each of the Underwriters as many copies of the
Prospectus (including all amendments and supplements thereto) and
documents incorporated by reference therein as you may reasonably
request;
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(c) from the date hereof and prior to the Closing Date, to
furnish to you a copy of any proposed amendment or supplement to the
Registration Statement or the Prospectus, for your review, and not to
file any such proposed amendment or supplement to which you reasonably
object;
(d) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act for so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities, and during such
same period, to advise you promptly, and to confirm such advice in
writing, (i) when any amendment to the Registration Statement shall
have become effective, (ii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose, and (iv) of the receipt
by the Company of any notification with respect to any suspension of
the qualification of the Securities for offer and sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and to use its best efforts to prevent the issuance of
any such stop order or notification and, if issued, to obtain as soon
as possible the withdrawal thereof;
(e) if, during such period after the first date of the public
offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law
to be delivered in connection with sales by an Underwriter or dealer,
any event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if it is necessary to amend or supplement
the Prospectus to comply with law, forthwith to prepare and furnish, at
the expense of the Company, to the Underwriters and to the dealers
(whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, such amendments or supplements to
the Prospectus as may be necessary so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circum stances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law;
(f) 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 and to continue such qualification in effect
so long as reasonably required for distribution of the Securities;
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provided that the Company shall not be required in any event to file a
general consent to service of process in any jurisdiction or to qualify
as a foreign corporation in any state or jurisdiction or to qualify as
a foreign corporation in any state or jurisdiction;
(g) the Company will make generally available to its
securityholders as soon as practicable, but not later than 45 days (or
90 days, in the case of a period that is also the Company's fiscal
year) after the close of the period covered thereby, an earnings
statement of the Company and its subsidiaries (in form complying with
the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the "effective date" (as
defined in said Rule 158) of the Registration Statement;
(h) so long as the Securities are outstanding, the Company
will furnish to the Representative copies of all annual reports,
quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such similar forms as may be designated by
the Commission, and such other documents, reports and information as
shall be furnished by the Company to its stockholders or
securityholders generally, provided, however, that the Company shall
not be required to provide the Representative with any such reports or
similar forms that have been filed with the Commission by electronic
transmission pursuant to XXXXX;
(i) during the period beginning on the date hereof and
continuing to and including the Closing Date, not to offer, sell,
contract to sell, or otherwise dispose of any debt securities of or
guaranteed by the Company which are substantially similar to the
Securities without the prior written consent of the Underwriters;
(j) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all costs and expenses (i) incident to the
preparation, issuance, execution, authentication and delivery of the
Securities, including any expenses of the Trustee, (ii) incident to
the preparation, printing and filing under the Securities Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements
thereto), (iii) incurred in connection with the registration or
qualification and determination of eligibility for investment of the
Securities under the laws of such jurisdictions as the Underwriters
may designate in accordance with the provisions of Section 5(f)
(including fees of counsel for the Underwriters and their
disbursements), (iv) in connection with the printing (including word
processing and duplication costs) and delivery of this Agreement, the
Indenture, the Preliminary and Supplemental Blue Sky Memoranda and the
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furnishing to Underwriters and dealers of copies of the Registration
Statement and the Prospectus, including mailing and shipping, as
herein provided, and (v) payable to rating agencies in connection with
the rating of the Securities.
6. The several obligations of the Underwriters hereunder shall be
subject to the following conditions:
(a) the representations and warranties of the Company
contained herein are true and correct on the date hereof and as of the
Closing Date as if made on and as of the date hereof and of the Closing
Date and the Company shall have complied with all agreements and all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date;
(b) the Prospectus shall have been filed with the Commission
pursuant to Rule 424 within the applicable time period prescribed for
such filing by the rules and regulations under the Securities Act; no
stop order suspending the effectiveness of the Registration Statement
shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission;
(c) subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
downgrading, nor shall any notice have been given of (i) any
downgrading, (ii) any intended or potential downgrading or (iii) any
review or possible change that does not indicate an improvement, in the
rating accorded any securities of or guaranteed by the Company by any
"nationally recognized statistical rating organization", as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act;
(d) since the respective dates as of which information is given
in the Prospectus there shall not have been (i) any material change in
the capital stock of the Company or any of its subsidiaries, except
for the issuance by the Company of capital stock on exercise of
previously-issued stock options, (ii) any material change in the long
term debt of the Company, except the incurrence by the Company or any
of its subsidiaries of additional long term debt in connection with
acquisition transactions in the ordinary course of business, or (iii)
any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business
prospects, financial position, or results of operations of the Company
and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, the effect of which in the judgment of
the Representatives makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities on the
terms and in the manner contemplated in the Prospectus;
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(e) the Representatives shall have received on and as of the
Closing Date a certificate of an executive officer of the Company, with
specific knowledge about the Company's financial matters, satisfactory
to you to the effect set forth in subsections (a) through (c) (with
respect to the respective representations, warranties, agreements and
conditions of the Company) of this Section and to the further effect
that since the respective dates as of which information is given in the
Registration Statement, Prospectus or Prospectus Supplement, there has
not occurred any material adverse change, or any development involving
a prospective material adverse change, in or affecting the business
prospects, financial position, or results of operations of the Company
and its subsidiaries taken as a whole from that set forth or
contemplated in the Registration Statement;
(f) Xxxxx Xxxx LLP, special counsel for the Company, shall
have furnished to you their written opinion, dated the Closing Date, in
form and substance satisfactory to you, 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 power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented.
(ii) this Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Securities have been duly authorized,
executed and delivered by the Company and, when duly
authenticated in accordance with the terms of the Indenture
and delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will constitute
valid and binding obligations of the Company, entitled to
the benefits provided by the Indenture, enforceable against
the Company in accordance with their terms, except to the
extent that enforcement thereof may be limited by (i) bank
ruptcy, insolvency, reorganization, moratorium and similar
laws now or hereafter in effect relating to creditors'
rights generally, (ii) the effect of rules of law and legal
and equitable principles governing specific perfor xxxxx,
injunctive relief, rights of acceleration and other
equitable remedies, regardless of whether enforceability of
any obligation is considered in a proceeding in equity or at
law, (iii) the conflicts of law or choice of law provisions
contained therein to the extent such provisions may be
applied by any courts other than the courts in the State of
New York, (iv) remedies available in respect of violations
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or breaches by the Company which are determined by a court
to be the proximate result of action taken by any other
party which actions such other party is not entitled to
take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay
in exercising rights or remedies will not operate as a
waiver of any such right or remedy, or (vi) any provision
which purports or would operate to render ineffective any
waiver or modification not in writing;
(iv) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a valid and
binding instrument of the Company enforceable against the
Company in accordance with its terms, except to the extent
enforcement thereof may be limited by (i) bank ruptcy,
insolvency, reorganization, moratorium and similar laws now
or hereafter in effect relating to creditors' rights
generally, (ii) the effect of rules of law and legal and
equitable principles governing specific performance,
injunctive relief, rights of acceleration and other
equitable remedies, regardless of whether enforceability of
any obligation is considered in a proceeding in equity or at
law, (iii) the conflicts of law or choice of law provisions
contained therein to the extent such provisions may be
applied by any courts other than the courts in the State of
New York, (iv) remedies available in respect of violations
or breaches by the Company which are determined by a court
to be the proximate result of action taken by any other
party which actions such other party is not entitled to
take, (v) any provision which purports, by implication or
otherwise, to state that the failure to exercise or a delay
in exercising rights or remedies will not operate as a
waiver of any such right or remedy, or (vi) any provision
which purports or would operate to render ineffective any
waiver or modification not in writing; the Indenture has
been duly qualified under the Trust Indenture Act;
(v) no consent, approval, authorization, order,
license, registra tion or qualification of or with any court
or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the Indenture,
except such consents, approvals, authorizations, orders,
licenses, registra tions or qualifications as have been
obtained under the Securities Act and the Trust Indenture Act
and as may be required under state securities or Blue Sky laws
in connection with the purchase and distribution of the
Securities by the Underwriter;
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(vi) the statements contained in the Basic Prospectus
under "Description of Debt Securities" and in the prospectus
supplement specifi cally relating to the Securities under "The
Notes," insofar as such state ments constitute a summary of
the legal matters or documents referred to therein, fairly
present in all material respects the information called for
with respect to such legal matters and documents and fairly
summarize in all material respects the matters referred to
therein;
(vii) the Registration Statement is effective under
the Securities Act and, to the best of such counsel's
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act or proceeding therefor initiated or
threatened by the Commission;
(viii) assuming that each document incorporated by
reference in the Registration Statement complied as to form to
the requirements of the Exchange Act, the Registration
Statement (except for the financial statements included
therein as to which such counsel need express no opinion)
comply as to form in all material respects with the
requirements of the Securities Act. Such counsel shall also
state that based on their participation in conferences with
representatives of the Underwriters, representatives of the
Company, counsel for the Underwriters, counsel for the Company
and representatives of the independent accountants for the
Company during which the contents of the Registration
Statement and the Prospectus and related matters were
discussed (the documents incorporated by reference having been
prepared without their involvement), their review of certain
corporate documents furnished to them by the Company their
understanding of applicable law and the experience they have
gained in their practice thereunder, they advise you that
nothing has come to their attention that caused them to
believe that the Registration Statement (other than the
financial statements and the notes thereto and the
supporting schedules and other financial and statistical
data derived therefrom, set forth therein or incorporated by
reference, as to which no advice is given and except for
that part of the Registration Statement that constitutes the
Form T-1 referred to herein, as to which no advice is
given), as of its effective date or as of the date of such
opinion, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus
(other than financial statements and the notes thereto and
the supporting schedules and other financial and statistical
data derived therefrom, set forth herein or incorporated by
reference, as to which no advice is given), as of the date
13
of the Prospectus Supplement, or as of the date of such
opinion, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statement therein, in the
light of the circumstances under which they were made, not
misleading;
In rendering such opinions, such special counsel may rely (A)
as to matters involving the application of laws other than the laws of
the United States, the State of Missouri and the Delaware General
Corporation Law, to the extent such counsel deems proper and to the
extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws; (B) as to
matters of fact, to the extent such special counsel deems proper, on
certificates of responsible officers of the Company and certificates or
other written statements of officials of jurisdictions having custody
of documents respecting the corporate existence or good standing of the
Company. The opinion of such special counsel for the Company shall
state that the opinion of any such other counsel upon which they relied
is in form satisfactory to such counsel and, in such counsel's opinion,
the Underwriters and they are justified in relying thereon. With
respect to the matters to be covered in subparagraph (vii) above
special counsel may state their opinion and belief is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any amendment or supplement thereto but is without
independent check or verification except as specified.
The opinion of Xxxxx Xxxx LLP described above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(g) Xxxxxx X. Xxxxxxx, general counsel for the Company, shall
have furnished to you his written opinion, dated the Closing Date, in
form and substance satisfactory to you, 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 power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended
or supplemented;
(ii) the Company has been duly qualified as a foreign
corpora tion for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
14
require such qualification, other than where the failure to be
so qualified or in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole;
(iii) each of the Company's "significant
subsidiaries" (as defined in Regulation S-X promulgated by the
Commission) has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of
incorporation with power and authority (corporate and other)
to own its properties and conduct its business as described in
the Prospectus and has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it
owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be
so qualified and in good standing would not have a material
adverse effect on the Company and its subsidiaries taken as a
whole; and all of the issued shares of capital stock of each
have been duly and validly authorized and issued, are fully
paid and non-assessable, and (except, in the case of foreign
subsidiaries, for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(iv) after due inquiry such counsel does not know of
any legal or governmental investigations, actions, suits or
proceedings, pending or threatened against or affecting the
Company or any of its subsidiaries or any of their
respective properties or to which the Company or any of its
subsidiaries is or may be a party or to which any property
of the Company or its subsidiaries is or may be the subject
that are required to be described in the Prospectus or
Registration Statement and are not so described;
(v) the issue and sale of the Securities and the
performance by the Company of its obligations under the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not, to the best of such counsel's
knowledge, conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its
subsidiaries, nor will any such action result in any
violation of the provisions of the Certificate of
Incorporation, or the By-Laws of the Company or, to the best
of such counsel's knowledge, conflict with a result in a
violation of any applicable law or statute or any order,
rule or regulation of any court or governmental agency or
15
body having jurisdiction over the Company, its subsidiaries
or any of their respective properties;
(vi) no consent, approval, authorization, order,
license, registra tion or qualification of or with any court
or governmental agency or body is required for the issue and
sale of the Securities or the consummation of the other
transactions contemplated by this Agreement or the
Indenture, except such consents, approvals, authorizations,
orders, licenses, registra tions or qualifications as have
been obtained under the Securities Act and the Trust
Indenture Act and as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriter;
(vii) such general counsel is of the opinion that each
document incorporated by reference in the Registration
Statement and the Prospectus as amended or supplemented
(other than the financial statements and related schedules
therein, as to which such counsel need express no opinion)
complied as to form when filed with the Commission in all
material respects with the Exchange Act, and the rules and
regulations of the Commission thereunder;
(viii) the statements (1) in the Registration Statement
under Item 15, (2) in "Item 3 - Legal Proceedings of the
Company's most recent annual report on Form 10-K
incorporated by reference in the Prospectus and (3) in "Item
1-Legal Proceedings" or Part II of the Company's quarterly
reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute
summaries of the legal matters, documents and proceedings
referred to therein, fairly present, in all material
respects, the information called for with respect to such
legal matters, documents and proceedings and fairly
summarize, in all material respects, the matters referred to
therein;
In rendering such opinions, such general counsel may rely, as
to matters involving the application of laws other than the laws of the
United States, the State of Missouri and the Delaware General
Corporation Law, to the extent such general counsel deems proper and to
the extent specified in such opinion, if at all, upon an opinion or
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably acceptable to the
Underwriters' counsel, familiar with the applicable laws. The opinion
of such general counsel for the Company shall state that the opinion of
any such other counsel upon which they relied is in form satisfactory
16
to such counsel and, in such counsel's opinion, the Underwriters and
they are justified in relying thereon. With respect to the matters to
be covered in subparagraph (vii) above counsel may state their opinion
and belief is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any amendment or
supplement thereto but is without independent check or verification
except as specified.
Such counsel shall also state that based on his participation
in conferences with representatives of the Underwriters,
representatives of the Company, counsel for the Underwriters, counsel
for the Company and representatives of the independent accountants for
the Company during which the contents of the Registration Statement and
the Prospectus and related matters were discussed, his review of
certain corporate documents furnished to him by the Company, his
understanding of applicable law and the experience he has gained in his
practice thereunder, he advises you that nothing has come to his
attention that caused him to believe that the Registration Statement
(other than the financial statements and the notes thereto and the
supporting schedules and other financial and statistical data derived
therefrom, set forth therein or incorporated by reference, as to which
no advice is given and except for that part of the Registration
Statement that constitutes the Form T-1 referred to herein, as to which
no advice is given), as of its effective date or as of the date of such
opinion, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or
that the Prospectus (other than financial statements and the notes
thereto and the supporting schedules and other financial and
statistical data derived therefrom, set forth herein or incorporated
by reference, as to which no advice is given), as of the date of the
Prospectus Supplement, or as of the date of such opinion, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statement
therein, in the light of the circumstances under which they were made,
not misleading.
The opinion of Xxxxxx X. Xxxxxxx above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(h) on the date hereof and on the Closing Date,
PricewaterhouseCoopers LLP shall have furnished to you letters, dated
such date, in form and substance satisfactory to you, containing
statements and information of the type customarily included in
accountants "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus;
17
(i) you shall have received on and as of the Closing Date an
opinion of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the
Underwriters, with respect to the validity of the Indenture and the
Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may reasonably request, and such
counsel shall have received such papers and information as they may
reasonably request to enable them to pass upon such matters; and
(j) on or prior to the Closing Date, the Company shall have
furnished to the Representatives such further certificates and
documents as the Representa tives shall reasonably request.
7. The Company agrees to indemnify and hold harmless each Underwriter, each
affiliate of any Underwriter which assists such Underwriter in the distribution
of the Securities and each person, if any, who controls any Underwriter 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 the reasonable legal fees and other
expenses incurred in connection with the investigation or defending of any such
action or claim, any suit, action or proceeding or any claim asserted) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the case of the Prospectus or any preliminary prospectus,
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
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein, provided, however, that the foregoing
indemnity agreement with respect to any Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Securities, or any person, controlling
such Underwriter, if a copy of the Prospectus (as then amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) was
not sent or given by or on behalf of such Underwriter 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 Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
losses, claims, damages or liabilities.
Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person who controls the Company within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act, to the same extent
18
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter contained in or in
conformity with information furnished to the Company in writing by such
Underwriter through the Representatives expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Person") shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person 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 Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, or (ii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person 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 Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Underwriters, each affiliate of any Underwriter which assists such
Underwriter in the distribution of the Securities and such control persons of
Underwriters shall be designated in writing by the first of the named
Representatives on Schedule I hereto and any such separate firm for the Company,
its directors, its officers who sign the Registration Statement and such control
persons of the Company or authorized representatives shall be designated in
writing by the Company. The Indemnify ing Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Person,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Person is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Person, unless such settlement
includes an unconditional release of such Indemnified Person from all liability
on claims that are the subject matter of such proceeding.
19
If the indemnification provided for in the first and second paragraphs of
this Section 7 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
each Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person 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 Underwriters on the
other hand from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other 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 Underwriters on the other shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of such Securities (before deducting expenses) received by the Company and the
total underwriting discounts and the commissions received by the Underwriters
bear to the aggregate public offering price of the Securities. The relative
fault of the Company on the one hand and the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters 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 the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses incurred by such Indemnified
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an
Underwriter be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresen tation. The Underwriters' obligations to
20
contribute pursuant to this Section 7 are several in proportion to the
respective principal amount of the Securities set forth opposite their names in
Schedule I hereto, and not joint.
The remedies provided for in this Section 7 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to any
indemnified party at law of in equity.
The indemnity and contribution agreements contained in this Section 7
and the representations, warranties and covenants of the Company set forth 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 Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any other person controlling
the Company and (iii) acceptance of and payment for any of the Securities.
8. Notwithstanding anything herein contained, this Agreement may be
terminated in the absolute discretion of the Representatives, by notice given to
the Company, if 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 or guaranteed by the Company shall have been
suspended or materially limited 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 the judgment of
the Representatives, is material and adverse and which, in the judgment of the
Representatives, makes it impracticable to market the Securities on the terms
and in the manner contem plated in the Prospectus.
9. If, on the Closing Date, any one or more of the Underwriters shall
fail or refuse to purchase Securities which it or they have agreed to purchase
under this Agreement, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their
respective names in Schedule I hereto bears to the aggregate principal amount of
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided that in no event shall the
21
principal amount of Securities that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 9 by an amount in
excess of one-tenth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities 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,
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 Underwriter or 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 Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
10. If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement or any condition of the Underwriters' obligations cannot be fulfilled,
the Company agrees to reimburse the Underwriters or such Underwriters as have so
terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and expenses of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering of Securities.
11. This Agreement shall inure to the benefit of and be binding upon
the Company, each affiliate of any Underwriter which assists such Underwriter in
the distribution of the Securities, the Underwriters, any controlling persons
referred to herein and their respective successors and assigns. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Securities from any Underwriter shall be deemed to be
a successor by reason merely of such purchase.
12. Any action by the Underwriters hereunder may be taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone on behalf of the Underwriters, and any such action taken by you
jointly or by the first of the named Representatives set forth in Schedule I
hereto alone shall be binding upon the Underwriters. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of telecommunica tion.
Notices to the Underwriters shall be given at the address set forth in Schedule
II hereto. Notices to the Company shall be given to it at The Earthgrains
22
Company, 0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: Xxxxxx X. Xxxxxxx.
13. This Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
instrument.
14. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the conflicts
of laws provisions thereof.
23
Very truly yours,
THE EARTHGRAINS COMPANY
By:
---------------------------------------
Name:
Title:
Accepted: April __, 1999
Acting on behalf of itself and
the several Underwriters
listed in Schedule II hereto.
By: X.X. XXXXXX SECURITIES INC.
By:
---------------------------------------
Name:
Title:
24
SCHEDULE I
Representative: X.X. Xxxxxx Securities Inc.
Underwriting Agreement dated: April __, 1999
Registration Statement No.: 333-______
Title of Securities:
Aggregate Principal Amount: $150,000,000
Price to Public: __% of the principal amount of the Securities,
plus accrued interest, if any, from ______, 1999
to the Closing Date.
Indenture: Indenture dated as of April __, 1999 between
the Company and The Bank of New York as
Trustee.
Maturity:
Interest Rate:
Interest Payment Dates:
Optional Redemption
Provisions:
25
Sinking Fund Provisions:
Other Provisions:
Closing Date and
Time of Delivery:
Closing Location:
Address for Notices
to Underwriters:
26
SCHEDULE II
Principal Amount
of Securities
Underwriter To Be Purchased
----------- ----------------
X.X. Xxxxxx Securities Inc......................................$
Total...........................................................$
27
