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EXHIBIT 1
DRAFT
2/5/96
XXXXXXXX BRANDS INTERNATIONAL, INC.
SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
JANUARY, 1996
Xxxxxxxx Brands International, Inc., a New Jersey corporation
(the "Company"), proposes to issue and sell from time to time senior debt
securities, subordinated debt securities (collectively, "Debt Securities"),
preferred stock, which may be issued in the form of depositary shares, common
stock, and securities warrants registered under the registration statement
referred to in Paragraph 1(a) ("Underwritten Securities"). If specified in a
Terms Agreement (as defined in Paragraph 2), the Company proposes to grant to
the underwriters an option to purchase up to that amount of Underwritten
Securities specified in such Terms Agreement (the "Option Securities"). The Debt
Securities will be issued under indentures (as they may be amended or
supplemented from time to time, the "Indentures"), more particularly described
in a Terms Agreement, between the Company and the trustees named therein (the
"Trustee(s)"), in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, conversion or exchange provisions,
selling prices and other terms, with all such terms for any particular series of
the Debt Securities being determined at the time of sale. The preferred stock
will be issued in one or more series, which may be either Non-Voting Cumulative
Preferred Stock, par value $1.00 per share ("Non-Voting Preferred Stock"), or
Cumulative Preference Stock, without par value ("Preference Stock"), (together
"Preferred Stock"), either of which may be issued in the form of depositary
shares evidenced by depositary receipts ("Depositary Shares"). Each series of
Preferred Stock may vary as to voting rights, dividends, optional and mandatory
redemption provisions, liquidation preference and conversion or exchange
provisions and other terms, with all such terms for any particular series or
issue of the Preferred Stock being determined at the time of issue. Securities
warrants ("Securities Warrants") may also be offered from time to time to
purchase Debt Securities, Preferred Stock, common stock or Depositary Shares.
The Underwritten Securities will be sold pursuant to one or more Terms
Agreements, for resale in accordance with terms of offering determined at the
time of sale.
The Underwritten Securities (together with the Option
Securities) involved in any such offering are hereinafter referred to as the
"Securities." The firm or firms which agree to purchase all or any portion of
the Securities are hereinafter referred to as the "Underwriters" of such
Securities, and the representative or representatives of the Underwriters, if
any, specified in a Terms Agreement are hereinafter referred to as the
"Representatives"; provided, however, that if the Terms Agreement does not
specify any representative of the Underwriters, the term "Representatives," as
used in this Agreement (other than in Paragraphs 1(b), 7 and 9 and the second
sentence of Paragraph 2) shall mean the Underwriters.
1. Representations, Warranties and Agreements of the
Company. The Company represents and warrants to and agrees with each
Underwriter that:
(a) A registration statement on Form S-3 with respect to the
Securities (i) has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, (ii)
has been filed by the Company with the Commission under the Act and
(iii) has been declared effective by the Commission. If any post-
effective amendment to such registration statement has been filed with
the Commission prior to the execution and delivery of the Terms
Agreement, the most recent such amendment has been declared effective
by the Commission. Copies of such registration statement (including all
documents incorporated by reference in the latest prospectus contained
therein) as amended as of the date of the Terms Agreement have been
delivered by the Company to the Representatives.
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As used in this Agreement, "Primary Registration Statement"
means such registration statement (including documents incorporated by
reference therein), as it became effective under the Act, "Rule 462(b)
Registration Statement" means a second registration statement, if any,
on Form S-3 with respect to the Securities prepared by the Company and
filed with the Commission under the Act pursuant to Rule 462(b) of the
Rules and Regulations, and "Registration Statements" means both the
Primary Registration Statement and any Rule 462(b) Registration
Statement, in each case including all exhibits (other than Form T-1)
and financial schedules thereto, as amended as of the date of the Terms
Agreement; "Basic Prospectus" means the prospectus (including documents
incorporated by reference therein) included in the Registration
Statement; and "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement specifically relating to the
Underwritten Securities to be purchased by the Underwriters pursuant to
the Terms Agreement, as filed with, or mailed for filing to, the
Commission pursuant to Rule 424(b) of the Rules and Regulations ("Rule
424"). As of the date of the Terms Agreement, the Commission has not
issued any order preventing or suspending the use of any Prospectus.
(b) The Registration Statements and the Prospectus comply,
and, at all times when a prospectus is required to be delivered in
connection with offers or sales of the Underwritten Securities, the
Registration Statements, any amendments thereof, the Prospectus and the
Prospectus as amended or supplemented, including any document filed by
the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), after
the dates of such Registration Statements or Prospectus, as the case
may be, and incorporated by reference in such Registration Statements
or Prospectus ("Incorporated Documents"), will comply, as to form in
all material respects with the requirements of the Act, the Exchange
Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), if applicable, and the rules and regulations under
such acts; the Indenture, if any, specified in any Terms Agreement
including any amendments and supplements thereto, will comply as to
form in all material respects with the requirements of the Trust
Indenture Act and the rules and regulations of the Commission
thereunder; and the Registration Statements and the Prospectus
(including any Incorporated Documents) do not contain, and at all times
when a prospectus is required to be delivered in connection with offers
or sales of Underwritten Securities, will not include, any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, provided that the Company makes no
representation or warranty as to information contained in or omitted
from the Registration Statements or the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives, if any, specifically for inclusion
therein. The Indenture, if any, described in the Terms Agreement has
been qualified under the Trust Indenture Act.
(c) The documents which are incorporated by reference in the
Registration Statements and the Prospectus have been, and each
Incorporated Document will be, prepared by the Company in conformity
with the requirements of the Act and the Exchange Act and the rules and
regulations thereunder and such documents have been, or in the case of
an Incorporated Document will be, timely filed as required thereby.
Copies of each of the documents incorporated by reference in the
Registration Statements and the Prospectus, together with satisfactory
evidence of the filing thereof, have been delivered by the Company to
the Representatives.
(d) The Company has all necessary corporate power and
authority to execute and deliver the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and
perform its obligations under the Terms Agreement (including the
provisions of this "Underwriting Agreement Basic Provisions") and the
Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") has been duly authorized, executed and
delivered by the Company, constitutes the valid and binding agreement
of the Company and is enforceable against the Company in accordance
with its terms, subject to the qualification that the enforceability of
the Company's obligations thereunder and hereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights, by general equity
principles and by public policy restrictions on provisions relating to
indemnification.
(e) The execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions") and the consummation of the transactions
contemplated therein and
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herein and compliance by the Company with the provisions of the
Underwritten Securities and the Indenture, if any, described in the
Terms Agreement will not conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
the Company or any of its Significant Subsidiaries (as defined in
Paragraph 13) pursuant to the terms of, or constitute a default (or an
event which with the giving of notice or the lapse of time or both will
constitute a default) under, any agreement, indenture or instrument, or
result in a violation of the corporate charter or by-laws of the
Company or any of its Significant Subsidiaries or any law, treaty,
order, rule, regulation or determination of any arbitrator, court or
governmental agency having jurisdiction over the Company, any of its
Significant Subsidiaries or their property. Except as required by the
Act, the Trust Indenture Act, if applicable, the Exchange Act, and
applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is
required for the execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions") and the Indenture, if any, described in the Terms
Agreement.
(f) Since the respective dates as of which information is
given in the Registration Statements and the Prospectus and prior to
the Delivery Date (as defined in Paragraph 4 hereof), there has not
been, and there will not have been, any material change in the capital
stock of the Company, any material increase in the long-term debt of
the Company or any of its Significant Subsidiaries or any material
adverse change in, or any development which might reasonably be
expected to have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(g) To the best knowledge of the Company, Ernst & Young, whose
reports are included or incorporated by reference in the Registration
Statements and the Prospectus, are independent public accountants as
required by the Act and the Rules and Regulations.
(h) On the Delivery Date (i) the Indenture, if any, described
in the Terms Agreement will have been validly authorized, executed and
delivered by the Company, will have been duly qualified under the Trust
Indenture Act and will constitute the valid and legally binding
obligation of the Company, enforceable in accordance with its terms;
(ii) the Debt Securities, if any, described in the Terms Agreement will
have been validly authorized for issuance, and, upon execution,
authentication, delivery and payment therefor as provided in this
Agreement and such Indenture, will be validly issued and outstanding,
and will constitute valid and legally binding obligations of the
Company enforceable against the Company in accordance with their terms
and entitled to the benefits of such Indenture; (iii) such Indenture
will conform to the descriptions thereof in the Prospectus; (iv) if any
Securities to be issued are convertible or exchangeable, the shares of
capital stock issuable upon conversion or exchange are duly and validly
authorized, have been duly reserved for issuance upon conversion or
exchange of the Securities and, when issued upon the conversion or
exchange of the Securities, will be duly and validly issued, fully paid
and non-assessable; (v) the common stock and preferred stock, if any,
described in the Terms Agreement have been duly and validly authorized
and when issued will be fully paid and non-assessable; (vi) no further
approval or authority of the stockholders or the Board of Directors of
the Company will be required for the issuance and sale of the
Securities as contemplated herein or the issuance of the shares of
capital stock upon conversion or exchange of the Securities; and (vii)
the Securities will conform to the description thereof in the
Prospectus.
(i) The Company and each of its Significant Subsidiaries have
been duly organized, are validly existing and in good standing under
the laws of their respective jurisdictions of incorporation and are
duly qualified to do business and in good standing as foreign
corporations in each jurisdiction in which their respective ownership
of property or lease of property or the conduct of their respective
businesses requires such qualification and in which the failure to
qualify might reasonably be expected to have, singularly or in the
aggregate with all such failures, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole. Each of
the Company and its Significant Subsidiaries has the corporate power
and authority necessary to own or hold its properties and to conduct
the businesses in which it is engaged. All of the authorized and
outstanding shares of capital stock of the Company are duly authorized,
validly issued and outstanding and are fully paid and non-assessable,
with no personal liability attaching to the ownership thereof. All
outstanding shares of capital stock of the Significant Subsidiaries of
the Company are duly authorized,
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validly issued and outstanding, fully paid and non-assessable and,
except for director's and employee's qualifying shares and other
nominal interests in certain non-U.S. Significant Subsidiaries, are
owned, directly by the Company or a wholly-owned subsidiary of the
Company (except that 356,400 common shares of the 7,302,000 common
shares outstanding of United Brands Japan, Ltd. are held by other
shareholders) free and clear of any lien, claim, encumbrance,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party.
(j) Neither the Company nor any of its Significant
Subsidiaries (i) is in default, and no event has occurred which, with
notice or lapse of time or both, may constitute such a default, under
any lease, license, indenture, mortgage, deed of trust, note, bank loan
or other evidence of indebtedness or any other agreement, understanding
or instrument to which the Company or any such Significant Subsidiary
is a party or by which the Company or any such Significant Subsidiary
or any property of the Company or any such Significant Subsidiary may
be bound or affected, the effect of which default might reasonably be
expected to have, singularly or in the aggregate with all such
defaults, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole, or (ii) is in violation of the
Company's or any such Significant Subsidiary's corporate charter and
by-laws or any law, ordinance, governmental rule or regulation or court
decree to which it may be subject or has failed to obtain any license,
permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of
its business, which violation or failure might reasonably be expected
to have, singularly or in the aggregate with all such violations and
failures, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(k) The Company and each of its Significant Subsidiaries owns,
or has valid rights to use, all items of real and personal property
which are material to the business of the Company and its subsidiaries
taken as a whole, free and clear of all liens, encumbrances and claims
which might reasonably be expected to materially interfere with the
conduct of the business of the Company and its subsidiaries taken as a
whole. The Company and each of its Significant Subsidiaries (i) carries
or, in the case of a Significant Subsidiary is covered by, insurance in
such amounts and covering such risks as is generally maintained in the
same general area by companies of established repute engaged in the
same or similar business, and (ii) owns or possesses adequate rights to
use all material patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
registrations, copyrights, licenses, permits and certificates from
governmental authorities necessary for the conduct of its business and
has no reason to believe that the conduct of its business will conflict
with, and has not received any notice of any claim of conflict with,
the rights of others in respect thereof which conflict might reasonably
be expected to have, singularly or in the aggregate with all such
conflicts, a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company
and its subsidiaries taken as a whole.
(l) Except as disclosed in the Registration Statements and the
Prospectus, there is no litigation or proceeding pending before or by
any court or governmental agency, authority or body, or any arbitrator
or, to the knowledge of the Company, threatened against the Company or
any of its subsidiaries which (i) would affect the subject matter of
the Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") or the transactions contemplated by the
Prospectus or (ii) might be expected to have, singularly or in the
aggregate with all such litigation and proceedings, a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole.
(m) The financial statements (including the related notes and
supporting schedules) filed as part of or incorporated by reference in
the Registration Statements or included or incorporated by reference in
the Prospectus present fairly in accordance with generally accepted
accounting principles the consolidated financial condition and results
of operations of the Company, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the
periods involved.
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(n) No relationship, direct or indirect, exists between or
among the Company or any of its Significant Subsidiaries, on the one
hand, and the directors, officers, stockholders, customers or suppliers
of the Company or of any of its Significant Subsidiaries, on the other
hand, which is required by the Act or by the Rules and Regulations to
be described in the Registration Statements and the Prospectus which is
not so described or is not adequately described.
(o) Except as disclosed in the Registration Statements and the
Prospectus, no labor disturbance by the employees of the Company or any
of its Significant Subsidiaries exists or, to the knowledge of the
Company, is threatened which might reasonably be expected to have,
singularly or in the aggregate with all such disturbances, a material
adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries
taken as a whole.
(p) Except as described in the Registration Statements and
Prospectus, the Company and each of its Significant Subsidiaries has
fulfilled its obligations, if any, under the minimum funding standards
of the United States Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with
respect to each "plan" (as defined in ERISA and such regulations and
published interpretations) of the Company or any of its Significant
Subsidiaries and each such plan is in compliance in all material
respects with the presently applicable provisions of ERISA and such
regulations and published interpretations, and has not incurred any
liability to the Pension Benefit Guaranty Corporation or to any such
plan under Title IV of ERISA.
(q) Except as described in the Registration Statements and
Prospectus, there has been no storage, disposal, generation,
manufacture, refinement, transportation, production or treatment of
toxic wastes, solid wastes, hazardous wastes or hazardous substances by
the Company or any of its Significant Subsidiaries (or, to the best
knowledge of the Company, any of their predecessors in interest) at or
upon any of the property owned or leased by the Company or its
Significant Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would
require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation
or remedial action which, singularly or in the aggregate with all such
violations and remedial actions, might reasonably be expected not to
have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole. Except as described in the Registration
Statements and Prospectus, there has been no material spill, discharge,
leak, emission, injection, escape, dumping or release of any kind onto
such property or into the environment surrounding such property, of any
toxic wastes, solid wastes, hazardous wastes or hazardous substances
due to or caused by the Company or any of its Significant Subsidiaries
or with respect to which the Company or any of its Significant
Subsidiaries have knowledge. The terms "hazardous wastes" and
"hazardous substances" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
2. Purchases and Offering of Securities. The obligation of the
Underwriters to purchase, and the Company to sell, any Underwritten Securities
will be evidenced by an exchange of a telegram, telex or other written
communication (the "Terms Agreement") delivered at the time the Company
determines to sell the Underwritten Securities. Each Terms Agreement will be
substantially in the form of Annex II(A) or (B) attached hereto and will
incorporate by reference the provisions of this Agreement, except as otherwise
provided therein, and will specify the firm or firms which will be Underwriters,
the names of any Representatives, the amount to be purchased by each
Underwriter, the purchase price to be paid by the Underwriters and certain terms
of the Securities and whether any of the Securities may be sold to institutional
investors pursuant to Delayed Delivery Contracts (as defined below). The Terms
Agreement specifies any details of the terms of the offering which should be
reflected in a post- effective amendment to the Registration Statement or the
supplement to the Prospectus relating to the offering of the Underwritten
Securities. The obligations of the Underwriters to purchase the Underwritten
Securities will be several and not joint. It is understood that the Underwriters
propose to offer the Securities for sale as set forth in the Prospectus.
If specified in a Terms Agreement, on the basis of the
representations, warranties and covenants herein contained, and subject to the
terms and conditions herein set forth, the Company grants an option to the
several Underwriters
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to purchase, severally and not jointly, up to that amount of the Option
Securities, as shall be specified in the Terms Agreement, from the Company at
the same price as the Underwriters shall pay for the Underwritten Securities.
Said option may be exercised only to cover over-allotments in the sale of the
Underwritten Securities by the Underwriters and may be exercised in whole or in
part at any time (but not more than once) on or before the thirtieth day after
the date of the Terms Agreement upon written or telegraphic notice by the
Representatives to the Company setting forth (i) the amount of the Option
Securities as to which the several Underwriters are exercising the option and
(ii) the date, time and place of delivery of the Option Securities. The amount
of Option Securities to be purchased by each Underwriter shall be the same
percentage of the total amount of the Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, as adjusted by the Representatives in such manner as they deem
advisable to avoid fractional shares/units.
If the Terms Agreement provides for sales of Securities
pursuant to delayed delivery contracts, the Company authorizes the Underwriters
to solicit offers to purchase Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contract") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are only to be with institutional investors,
including commercial and savings banks, insurance companies, pension funds,
investment companies and educational and charitable institutions. On the
Delivery Date the Company will pay, as compensation, to the Representatives for
the accounts of the Underwriters, the fee set forth in such Terms Agreement in
respect of the amount of Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed Delivery
Contracts. If the Company executes and delivers Delayed Delivery Contracts, the
Contract Securities will be deducted from the Securities to be purchased by the
several Underwriters and the aggregate amount of Securities to be purchased by
each Underwriter will be reduced pro rata in proportion to the amount of
Securities set forth opposite each Underwriter's name in such Terms Agreement,
except to the extent that the Representatives determine that such reduction
shall be otherwise than pro rata and so advise the Company. The Company will
advise the Representatives not later than the business day prior to the Delivery
Date of the amount of Contract Securities.
3. Conditions of Company's Obligations; Defaulting
Underwriters. The Company shall not be obligated to deliver any Underwritten
Securities except upon payment for all Underwritten Securities to be purchased
pursuant to this Agreement as hereinafter provided.
If any Underwriter defaults in the performance of its
obligations under this Agreement, the remaining non-defaulting Underwriters
shall be obligated to purchase the Underwritten Securities which the defaulting
Underwriter agreed but failed to purchase in the respective proportions which
the amount of Underwritten Securities set forth in the Terms Agreement to be
purchased by each remaining non-defaulting Underwriter bears to the aggregate
amount of Underwritten Securities set forth in such Terms Agreement for all the
remaining non-defaulting Underwriters; provided, however, that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Underwritten
Securities if the aggregate amount of Underwritten Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase exceeds
9.09% of the total amount of Underwritten Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the amount of Underwritten Securities set forth in the Terms Agreement to be
purchased by it. If the foregoing maximums are exceeded, the remaining non-
defaulting Underwriters, or those other underwriters satisfactory to the
Representatives who so agree, shall have the right, but shall not be obligated,
to purchase (in such proportions as may be agreed upon among them) all the
Underwritten Securities. If the foregoing maximums are exceeded and the
remaining Underwriters or other underwriters satisfactory to the Representatives
do not elect to purchase the Underwritten Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter or the
Company, except that the Company will continue to be liable for the payment of
expenses to any non-defaulting Underwriter as set forth in Paragraph 6.
Nothing contained herein shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
such Underwriter's default. If other underwriters are obligated or agree to
purchase the Underwritten Securities of a defaulting Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that, in the opinion of
counsel for the Company or counsel for the Underwriters, may be necessary in the
Registration Statement, the Prospectus or any other document or arrangement.
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4. Delivery of and Payment for the Underwritten Securities.
Delivery of and payment for the Underwritten Securities shall be made at the
time and place specified in the Terms Agreement, on the third business day
following the date of the Terms Agreement or at such other location, time and
date as shall be determined by agreement between the Representatives and the
Company. This date and time are sometimes referred to as the "Delivery Date". On
the Delivery Date, the Company shall deliver the Underwritten Securities to the
Representatives for the account of each Underwriter against payment to or upon
the order of the Company of the purchase price for the Underwritten Securities
by certified or official bank checks payable in New York Clearing House (next
day) funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. The Securities shall be prepared in such form, names
and denominations as the Representatives shall request in writing not less than
three full business days prior to the Delivery Date. For the purpose of
expediting the checking and packaging of the Underwritten Securities, the
Company shall make the Underwritten Securities available, or cause such
Underwritten Securities to be available, for inspection by the Representatives
in New York City, New York not later than 2:00 P.M., New York City time, on the
business day prior to the Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To furnish promptly to the Representatives and to
counsel for the Underwriters a signed copy of each of the
Registration Statements as originally filed, and each
amendment or supplement thereto filed, with the Commission,
including all consents and exhibits filed therewith;
(b) To deliver promptly to the Representatives and to
each Underwriter such number of conformed copies of the
Registration Statements as originally filed and each amendment
thereto (excluding exhibits other than this "Underwriting
Agreement Basic Provisions", the Indentures and the
computation of the ratio of earnings to fixed charges and the
ratio of earnings to combined fixed charges and preferred
stock dividends) and the Prospectus and any amended or
supplemented Prospectus as the Representatives may reasonably
request during the period referred to in clause (c) of this
Paragraph 5;
(c) To prepare the Rule 462(b) Registration
Statement, if necessary, in a form approved by the
Representatives and to file timely such Rule 462(b)
Registration Statement with the Commission; to file timely
with the Commission during such period following the date of
each Terms Agreement as a prospectus is required to be
delivered in connection with offers or sales of Underwritten
Securities any amendment or supplement to the Registration
Statement or the Prospectus that may, in the reasonable
judgment of the Company or the Representatives, be required by
the Act or requested by the Commission and approved by the
Representatives;
(d) Prior to filing with the Commission during the
period referred to in clause (c) of this Paragraph 5 (i) any
amendment or supplement to either Registration Statement or
(ii) the Prospectus and any amendment or supplement thereto,
or (iii) any document incorporated by reference in any of the
foregoing, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the
lead Representative to the filing, which consent shall not be
unreasonably withheld;
(e) To advise the Representatives promptly (i) when
any post-effective amendment to either Registration Statement
relating to or covering the Underwritten Securities becomes
effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to either
Registration Statement (to the extent that the amendment or
supplement relates to or covers the Underwritten Securities)
or to the Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending
the effectiveness of either Registration Statement or any
order directed to the Prospectus or the initiation or threat
of any stop order proceeding, (iv) of receipt by the Company
of any notification with respect to the suspension of the
qualification (or exemption from qualification) of the
Underwritten Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for that purpose, and
(v) of the happening of any event prior to the termination of
any offering of Underwritten Securities which makes untrue any
statement of a material fact made in the Registration
Statements or the
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Prospectus, or which requires the making of a change in the
Registration Statements or the Prospectus in order to make any
material statement therein not misleading or which requires
the filing of any document under the Exchange Act;
(f) If, during the period referred to in clause (c)
of this Paragraph 5, the Commission shall issue a stop order
or any order preventing or suspending the effectiveness of
either Registration Statement, to make every reasonable effort
to obtain the lifting of that order at the earliest possible
time;
(g) As soon as practicable, but not later than 16
months after the date of each Terms Agreement, to make
generally available to its security holders and to deliver to
the Representatives an earning statement of the Company and
its subsidiaries, covering a period of at least 12 months
beginning after the later of (i) the effective date of the
Primary Registration Statement, (ii) the effective date of the
most recent post-effective amendment to either Registration
Statement to become effective prior to the date of such Terms
Agreement or (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to
the date of such Terms Agreement, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the
Act;
(h) To endeavor to qualify the Underwritten
Securities for offer and sale under the securities laws of
such jurisdictions as the Representatives may reasonably
request, except for such jurisdictions where the qualification
of the Underwritten Securities would require the Company to
qualify to do business as a foreign corporation or file a
general consent to service of process;
(i) If the Underwritten Securities are to be listed
on a securities exchange, to use its best efforts to complete
the listing of the Underwritten Securities to be sold by the
Company on such exchange;
(j) Subject to Paragraph 5(d) hereof, until the
termination of any offering of Underwritten Securities, to
file in a timely manner all documents and any amendments of
previously filed documents required to be filed pursuant to
Section 13, 14 or 15(d) of the Exchange Act;
(k) During the period of three years after the date
of any Terms Agreement, the Company will furnish to the
Representatives and, upon request, to each of the other
Underwriters, if any, as soon as practicable after the end of
each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each
Annual Report on Form 10-K, Quarterly Report on Form 10-Q,
Current Report on Form 8-K and definitive proxy statement of
the Company filed with the Commission under the Exchange Act
or mailed to stockholders, and (ii) from time to time, such
other information concerning the Company as the
Representatives may reasonably request;
(l) To apply the net proceeds of the sale of the
Underwritten Securities as set forth in the Prospectus; and
(m) To not (i) in the event of an offering of common
stock or convertible preferred stock, offer, sell, contract to
sell or otherwise dispose of any shares of common stock or any
securities convertible into or exchangeable or exercisable for
or any rights to purchase or acquire common stock for that
period specified in the Terms Agreement, other than shares of
common stock or options to purchase common stock granted under
the Company's employee benefit plans; and (ii) for a period
beginning at the time of execution of the Terms Agreement and
ending on the Delivery Date, in the event of an offering of
Debt Securities, offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company with maturities
longer than one year, other than (A) the Debt Securities to
the Underwriters or the Contract Securities; (B) borrowings in
the ordinary course of business; and (C) other borrowings in
an aggregate principal amount not to exceed $10 million, in
either case without the prior consent of the Representatives.
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6. Expenses. The Company agrees to pay the costs incident to
the authorization, issuance, sale and delivery of the Underwritten Securities
and any taxes payable in that connection; the costs incident to the preparation,
printing and filing under the Act of the Registration Statements and any
amendments, supplements and exhibits thereto, and the Prospectus and any
amendment or supplement to the Prospectus; the costs of distributing the
Registration Statements as originally filed and each amendment and any
post-effective amendments thereof (including exhibits), the Prospectus and any
amendment or supplement to the Prospectus as provided in this Agreement; the
costs of printing this Agreement and the Indenture; the costs of filings with
the National Association of Securities Dealers, Inc.; fees paid to rating
agencies in connection with the rating of the Underwritten Securities; the costs
incident to the listing of the Underwritten Securities on any securities
exchange; the fees and expenses of qualifying the Underwritten Securities under
the securities laws of the several jurisdictions as provided in this Paragraph
and of preparing and printing a Blue Sky Memorandum, and a memorandum concerning
the legality of the Underwritten Securities as an investment (including
reasonable fees and expenses of counsel to the Underwriters in connection
therewith); the cost of preparing the Underwritten Securities; the fees and
expenses of any Trustee and any agent of any Trustee and the fees and
disbursements of counsel for any Trustee in connection with the Indenture and
the Underwritten Securities; any transfer agent's fees; and all other costs and
expenses incident to the performance of the obligations of the Company under
this Agreement; provided that except as provided in this Paragraph and in
Paragraphs 3 and 10, the Underwriters shall pay all of their own costs and
expenses, including the fees and expenses of their counsel, any transfer taxes
on the Underwritten Securities which they may sell and the expenses of
advertising any offering of the Underwritten Securities made by the
Underwriters; provided, however, that the Company shall have no obligation to
pay the expenses of a defaulting Underwriter, as set forth in Paragraph 3.
7. Indemnification and Contribution. (a) The Company shall
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of the Act, from and against any
loss, claim, damage or liability, joint or several, and any action in respect
thereof (including, but not limited to, any loss, claim, damage, liability or
action relating to purchases and sales of Underwritten Securities), to which
that Underwriter or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in any blue sky application, the Registration
Statements, the Prospectus, any Incorporated Document or the Registration
Statements or the Prospectus, in each case as amended or supplemented, or (ii)
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading and
shall reimburse each Underwriter and each such controlling person for any legal
and other out of pocket expenses reasonably incurred by that Underwriter or
controlling person in investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any blue sky
application, the Registration Statements, the Prospectus or any amendment
thereof or supplement thereto, made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives, if any, specifically for inclusion
therein; and provided further that as to any Prospectus this indemnity agreement
shall not inure to the benefit of any Representative, Underwriter or any person
controlling an Underwriter on account of any loss, claim, damage, liability or
action arising from the sale of Underwritten Securities to any person by that
Underwriter if that Underwriter failed to send or give a copy of the Prospectus
(or the Prospectus as amended or supplemented) to such person within the time
required by the Act, and the untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact in such
Prospectus was remedied or corrected in such Prospectus, unless such failure
resulted from non-compliance by the Company with Paragraph 5(b) hereof. For
purposes of the second proviso to the immediately preceding sentence, the term
Prospectus shall not be deemed to include the documents incorporated therein by
reference, and no Underwriter shall be obligated to send or give any supplement
or amendment to any document incorporated by reference in any Prospectus to any
person other than a person to whom such Underwriter had delivered such
incorporated document or documents in response to a written request therefor.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or any such controlling person of
that Underwriter.
(b) Each Underwriter severally, and not jointly, shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed either Registration Statement, and each person, if any, who
controls the
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Company within the meaning of the Act, from and against any loss, claim, damage,
expense or liability, joint or several, and any action in respect thereof, to
which the Company or any such director or officer or controlling person may
become subject, under the Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon any untrue statement or
alleged untrue statement of a material fact contained in any blue sky
application, the Registration Statements, the Prospectus or the Registration
Statements or Prospectus, in each case as amended or supplemented, or arises out
of, or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of that Underwriter through the Representatives, if any,
specifically for inclusion therein, and shall reimburse the Company or any such
director or officer or controlling person for any legal and other expenses
reasonably incurred by the Company or any such director or officer or
controlling person in investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action. The foregoing indemnity
agreement is in addition to any liability which any Underwriter may otherwise
have to the Company or any such director, officer or controlling person.
(c) Promptly after receipt by an indemnified party under this
Paragraph 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Paragraph 7. If any such claim or action shall be brought against an indemnified
party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the indemnified party of its
election to assume the defense of such claim or action, the indemnifying party
shall not be liable to the indemnified party under this Paragraph 7 for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, if the defendants in any
such action include both an indemnified party and an indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties under this Paragraph 7 shall have the right to employ not more
than one counsel to represent them and, in that event, the reasonable fees and
expenses of not more than one such separate counsel shall be paid by the
indemnifying party. No indemnifying party shall be liable for any settlement of
any claim or action effected without its written consent.
(d) If the indemnification provided for in this Paragraph 7
shall be for any reason unavailable or insufficient to hold the indemnified
party harmless, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be 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 Underwritten 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 hand with respect to the
statements or omissions which resulted in such loss, claim, damage or liability,
or action in respect thereof, 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 hand with respect to such offering shall be
deemed to be in the same proportion as the total net proceeds from the offering
of the Underwritten Securities (before deducting expenses) received by the
Company bear to the total underwriting discounts, commissions and fees received
by the Underwriters with respect to such offering, in each case as set forth in
the table on the cover page of the Prospectus. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative 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 contributions pursuant to this
Paragraph 7(d) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to
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herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Paragraph 7(d) shall be deemed to include, for purposes of this
Paragraph 7(d), 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 Paragraph 7(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Underwritten Securities underwritten by it and
distributed to the public was offered to the public exceeds the amount of any
damages which such Underwriter has otherwise paid or become liable to pay by
reason of any 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this Paragraph 7(d) are several in
proportion to their respective underwriting obligations (or proceeds) and not
joint.
(e) The Underwriters severally confirm that the statements
with respect to the offering to the public of the Underwritten Securities set
forth on the cover page of, and under the captions "Plan of Distribution" and
"Underwriting" in, the Registration Statements and the Prospectus are correct
and were furnished in writing to the Company by or on behalf of the Underwriters
severally for inclusion in the Registration Statements and the Prospectus.
(f) The agreements contained in this Paragraph 7 and the
representations, warranties and agreements of the Company in Paragraphs 1 and 5
shall survive the delivery of the Underwritten Securities and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
8. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy on the
date of the Terms Agreement and the Delivery Date, of the representations and
warranties of the Company contained herein, to performance by the Company of its
obligations hereunder and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Paragraph 5(c) of this Agreement; at or before the
Delivery Date, no stop order suspending the effectiveness of either Registration
Statement shall have been issued, and prior to that time no stop order
proceeding shall have been initiated or threatened by the Commission; any
request of the Commission for inclusion of additional information in the
Registration Statements or the Prospectus or otherwise shall have been complied
with or otherwise satisfied; and the Company shall not have filed with the
Commission the Prospectus or any amendment or supplement to either Registration
Statement or the Prospectus or any Incorporated Document without the consent of
the lead Representative, provided that after the Delivery Date no such consent
shall be unreasonably withheld.
(b) No Underwriter shall have discovered and disclosed to the
Company, on or prior to the Delivery Date, that the Registration Statements or
the Prospectus or any amendment or supplement thereto or any Incorporated
Document contains an untrue statement of a fact which, in the opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, counsel to the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to be
stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Underwritten
Securities and the Indenture and the forms of Registration Statements and the
Prospectus, other than financial statements and other financial data, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be satisfactory in all respects to Xxxxxxx Xxxxxxx & Xxxxxxxx,
counsel to the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) The Company shall have furnished to the Representatives
the opinion of Xxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of
the Company, addressed to the Underwriters and dated the Delivery Date and, if
Option Securities are purchased, at any date after the Delivery Date as
specified in a Terms Agreement, an additional
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opinion from such counsel, addressed to the Underwriters and dated such later
date, confirming that the statements expressed as of the Delivery Date in such
opinion remain valid as of such later date, to the effect that:
(i) The Company has been duly organized and each of its
Designated Subsidiaries (as defined in Paragraph 13) is duly
incorporated; the Company and its Designated Subsidiaries are validly
existing and in good standing under the laws of their respective
jurisdictions of incorporation and have all requisite corporate power
and authority to own and operate their properties and to conduct the
businesses in which they are engaged;
(ii) All of the issued and outstanding shares of capital stock
of the Company have been duly authorized and validly issued and are
fully paid and non-assessable, with no personal liability attaching to
the ownership thereof; all the outstanding shares of capital stock of
each of the Company's Designated Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable and, except
for director's or employee's qualifying shares and other nominal
interests in certain non-U.S. Designated Subsidiaries, are owned,
directly by the Company or a wholly-owned subsidiary of the Company
(except that 356,400 common shares of the 7,302,000 common shares
outstanding of United Brands Japan, Ltd. are held by other
shareholders) free and clear of any lien, claim, encumbrance,
restriction upon voting or transfer, preemptive rights or any other
claim of any third party known to such counsel;
(iii) The Indenture, if any, described in the Terms Agreement
has been duly authorized, executed and delivered by the Company and has
been duly qualified under the Trust Indenture Act; the Debt Securities,
if any, described in the Terms Agreement are in a form contemplated by
such Indenture and have been duly authorized by all necessary corporate
action; such Debt Securities other than any Contract Securities have
been duly executed, authenticated, issued and delivered; such Indenture
and such Debt Securities other than any Contract Securities constitute,
and any Contract Securities, when executed, authenticated, issued and
delivered in the manner provided in the Indenture and sold pursuant to
Delayed Delivery Contracts, will constitute, valid and legally binding
obligations of the Company, enforceable in accordance with their terms,
subject to the qualification that the enforceability of the Company's
obligations thereunder may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights and by general equity principles;
(iv) If any Securities to be issued are convertible or
exchangeable, the shares of capital stock into which the Securities
will be initially convertible or exchangeable are duly and validly
authorized; have been duly reserved for issuance upon conversion or
exchange of the Securities; and when issued upon the conversion or
exchange of the Securities, will be duly and validly issued, fully paid
and non-assessable;
(v) The common stock and preferred stock, if any, described in
the Terms Agreement have been duly and validly authorized and issued
and are fully paid and non-assessable;
(vi) The Securities other than any Contract Securities conform
and the Indenture, if any, described in the Terms Agreement and any
Contract Securities, when so issued and delivered and sold, will
conform, in all material respects to the description thereof contained
in the Prospectus;
(vii) The Registration Statements have become effective under
the Act; any required filing of the Prospectus pursuant to Rule 424(b)
has been made within the time period required by Rule 424(b); and no
stop order suspending its effectiveness has been issued by the
Commission and, to the best of such counsel's knowledge, no proceeding
for that purpose is pending or threatened by the Commission;
(viii) To the best of such counsel's knowledge, no order
directed to any document incorporated by reference in the Prospectus
and the Registration Statements has been issued by the Commission and
to the knowledge of such counsel, no challenge by the Commission has
been made to the accuracy or adequacy of any such document;
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(ix) The Registration Statements and the Prospectus and any
amendment or supplement thereto, as of its date, comply as to form in
all material respects with the requirements of the Act, the Rules and
Regulations thereunder and the Trust Indenture Act, if applicable, and
the documents incorporated by reference in the Registration Statements
and the Prospectus comply as to form in all material respects with the
applicable requirements of the Act or the Exchange Act and the rules
and regulations thereunder;
(x) The Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") and any Delayed Delivery
Contracts have been duly authorized, executed and delivered by the
Company;
(xi) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or by-laws or in default
under any material agreement, indenture or instrument, except to the
extent such violations or defaults could not reasonably be expected to
have, singularly or in the aggregate, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole;
(xii) The Company has all necessary corporate power to execute
and deliver the Terms Agreement (including the provisions of this
"Underwriting Agreement Basic Provisions") and the Indenture, if any,
described in the Terms Agreement and to perform its obligations under
the Terms Agreement (including the provisions of this "Underwriting
Agreement Basic Provisions") and under such Indenture;
(xiii) The execution, delivery and performance of the Terms
Agreement (including the provisions of this "Underwriting Agreement
Basic Provisions"), and the issuance and sale of the Underwritten
Securities and the compliance with the terms and provisions of the
Underwritten Securities and the Indenture, if any, described in the
Terms Agreement will not conflict with, or result in the creation or
imposition of any material lien, claim, encumbrance, restriction upon
any of the assets of the Company or any of its Designated Subsidiaries
pursuant to the terms of, or constitute a default under, any material
agreement, indenture or instrument known to such counsel and to which
the Company or any of its Designated Subsidiaries is a party or bound,
or result in a violation of the corporate charter or by-laws of the
Company or any of its Designated Subsidiaries or any law, treaty,
order, rule or regulation or any determination known to such counsel of
any arbitrator, court or governmental agency having jurisdiction over
the Company, any of the Company's Designated Subsidiaries or any of
their properties. Except as required by the Act, the Exchange Act, the
Trust Indenture Act, if applicable, and applicable state securities
laws, no consent, authorization or order of, or filing or registration
with, any court or governmental agency in the United States is required
for the execution, delivery and performance of this Agreement by the
Company;
(xiv) There are no legal or governmental proceedings to which
the Company or any of its Designated Subsidiaries is a party, pending
or, to the best of such counsel's knowledge, threatened against the
Company or any of its Designated Subsidiaries which (A) might
reasonably be expected to have a material adverse effect on the subject
matter of the Terms Agreement or the transactions contemplated by the
Prospectus or (B) other than as described in the Prospectus, might
reasonably be expected to have, singularly or in the aggregate with all
such litigation and proceedings, a material adverse effect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole; and
(xv) No facts have come to such counsel's attention that cause
him to believe that (A) the Registration Statements as of their
respective effective dates contained any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or
(B) the Prospectus as of the Delivery Date contains any untrue
statement of a material fact or omits 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 (such counsel need express no opinion or belief as to
the financial statements or other financial or statistical data
included in or incorporated by reference in the Registration Statements
or the Prospectus).
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(e) The Company shall have furnished to the Representatives on
the Delivery Date a certificate dated the Delivery Date, and on any later date
on which Option Securities are purchased if specified in a Terms Agreement, a
certificate dated such date, signed on behalf of the Company by either the
Company's Chief Executive Officer, President or Executive Vice President and by
the Company's Chief Financial Officer or Controller stating that:
(i) The representations, warranties and agreements of the
Company in Paragraph 1 hereof are true and correct as of such date; the
Company has complied with all its agreements contained herein; and the
conditions on its part to be fulfilled prior to such date set forth
herein have been fulfilled; and
(ii) No stop order suspending the effectiveness of either
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) They have carefully examined the Registration Statements
and the Prospectus and, in their judgment, (A) neither the Registration
Statements, as of their respective effective dates, nor the Prospectus,
as of the date on which it was filed with the Commission pursuant to
Rule 424 of the Rules and Regulations, included any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (B) since the effective date, no event has occurred
which should have been set forth in the Prospectus or a supplement
thereto or amendment thereof which has not been set forth in such a
supplement or amendment and there has been no document required to be
filed under the Exchange Act and the rules and regulations thereunder
that upon such filing would be deemed to be incorporated by reference
into the Prospectus that has not been so filed.
(f) The Company shall have furnished to the Representatives on
the Delivery Date and any later date on which Option Securities are purchased if
specified in a Terms Agreement, a letter of Ernst & Young, addressed to the
Underwriters and dated such date, confirming that they are independent public
accountants with respect to the Company within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as
of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given or incorporated by reference in the Prospectus, as of a
date not more than five days prior to the date of such letter), the conclusions
and findings of such firm with respect to the financial information and other
matters covered by its letter delivered to the Representatives concurrently with
the execution of the Terms Agreement and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(g) The NASD, upon review of the terms of the public offering
of the Underwritten Securities, if any, shall not have objected to the
participation by any of the Underwriters in such offering or asserted any
violations of the By-Laws of the NASD.
(j) In the event of an offering of common stock or convertible
preferred stock, the Company shall have furnished to the Representatives a
letter agreement of American Financial Group, Inc. ("AFG"), addressed to the
Underwriters and dated on or before the date of the Terms Agreement relating to
such offering, providing in substance that for that period specified in the
Terms Agreement (i) AFG will not, and will cause its direct and indirect
subsidiaries (other than the Company and subsidiaries of the Company) not to,
sell, offer or contract to sell, sell or grant options, rights or warrants with
respect to or otherwise dispose of, directly or indirectly, except to direct or
indirect subsidiaries of AFG, any common stock or preferred stock of the Company
(or securities convertible into or exchangeable for common stock or preferred
stock of the Company) except with the prior written consent of Xxxxxx Brothers
Inc. and (ii) AFG has not taken, and will not take, directly or indirectly, and
will cause its direct and indirect subsidiaries not to take, directly or
indirectly, any action that might reasonably be expected to cause or result in
stabilization of the price of the common stock or preferred stock of the Company
or manipulation of the price of the common stock or preferred stock of the
Company.
All opinions, letters, certificates and documents mentioned
above or elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof if they are exactly in the form set forth above and, if
not, or if no
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particular form is set forth above, only if they are in form and substance
reasonably satisfactory to Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to the
Underwriters.
9. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representatives, if any, on behalf of the Underwriters
(or, if there are no Representatives, by a majority in interest of the
Underwriters), in their or its absolute discretion, by notice given to and
received by the Company prior to delivery of and payment for the Underwritten
Securities, if on or after the date of this Agreement and prior to that time
there shall have occurred any of the following: (a) any change, or any
development involving a prospective change, in or affecting primarily the
business, properties, condition (financial or other), results of operations or
prospects of the Company and its subsidiaries taken as a whole that materially
impairs the investment quality of the Underwritten Securities, or (b) a general
suspension of or material limitation in trading in securities generally on the
New York Stock Exchange, the American Stock Exchange or the over-the-counter
market or minimum prices shall have been established on one or more of such
exchanges or such market, or (c) a general banking moratorium declared by United
States federal or New York State authorities, or (d) any downgrading accorded
the Company's debt securities or preferred securities by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading of such rating) or (e)(i) a material adverse change in national or
international political, financial or economic conditions or national or
international equity markets or currency exchange rates or controls, if the
existing effect of any such event, in the reasonable judgment of the
Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities or (ii) the engagement by the United
States in active military conflict, or an outbreak or significant increase in
hostilities which would likely result in the declaration of a national emergency
or war, if the existing effect of any such event, in the reasonable judgment of
the Representatives, makes it inadvisable to proceed with the payment for and
delivery of the Underwritten Securities.
10. Expenses upon Termination. If the Company shall fail for
any reason to tender the Underwritten Securities on the Delivery Date to the
Underwriters under this Agreement, or if the Underwriters shall decline to
purchase the Underwritten Securities for any reason permitted under this
Agreement, the Company shall reimburse the Underwriters for the reasonable fees
and expenses of their counsel and for such other out-of-pocket expenses as shall
have been incurred by them in connection with this Agreement and the proposed
purchase of the Underwritten Securities and upon demand the Company shall pay
the full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Paragraph 3 by reason of the default of one or more Underwriters,
the Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
11. Notices. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made by the
Representatives. Any notice to the Underwriters shall be sufficient if given in
writing or by telegraph addressed to the Underwriters at the address set forth
for that purpose in the Terms Agreement, and any notice to the Company shall be
sufficient if, given in writing or by telegraph addressed to Xxxxxxxx Brands
International, Inc., 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
Xxxxxx X. Xxxxx.
12. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Act and (b) the indemnity agreement of the Underwriters contained in
Paragraph 7 of this Agreement shall be deemed to be for the benefit of directors
of the Company, officers of the Company who have signed either Registration
Statement and any person controlling the Company. Nothing in this Agreement is
intended or shall be construed to give any person other than the persons
mentioned in the preceding two sentences any legal or equitable rights, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
15
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13. Certain Definitions. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange is open for
trading, (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules and
Regulations, (c) "Significant Subsidiary" shall mean each of the entities set
forth on Schedule 1 attached hereto and made a part hereof, as such list of
entities may be amended pursuant to a Terms Agreement, and (d) "Designated
Subsidiary" shall mean each of the entities set forth on Schedule 2, attached
hereto and made a part hereof, as such list of entities may be amended pursuant
to a Terms Agreement.
14. Governing Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
The Terms Agreement may be executed in one or more counterparts and, if executed
in more than one counterpart, the executed counterparts shall together
constitute a single instrument.
15. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
16
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SCHEDULE 1
SIGNIFICANT SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Caribbean Enterprises, Inc. Delaware
Xxxxxxxx Brands, Inc. Delaware
CRH Shipping, Ltd. Bermuda
Great White Fleet, Ltd. Bermuda
Xxxxxxxx Brands Company, Delaware
North America
Xxxxxxxx Europe, B.V. Netherlands
Xxxxxxxx Banana Company, B.V. Netherlands
Xxxxxxxx International Delaware
Trading Company
Xxxxxxxx International Bermuda
Limited
Xxxxxxxx Tropical Products Company Delaware
Chiriqui Land Company Delaware
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
Polymer United, Inc. Delaware
Progressive Produce Corporation Ohio
United Brands Japan, Ltd. Japan
17
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SCHEDULE 2
DESIGNATED SUBSIDIARIES
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Caribbean Enterprises, Inc. Delaware
Xxxxxxxx Brands, Inc. Delaware
Xxxxxxxx Brands Company, Delaware
North America
Xxxxxxxx Europe, B.V. Netherlands
Xxxxxxxx Banana Company B.V. Netherlands
Xxxxxxxx International Delaware
Trading Company
Xxxxxxxx International Bermuda
Limited
Chiriqui Land Company Delaware
Maritrop Trading Corporation Delaware
Tela Railroad Company Delaware
Polymer United, Inc. Delaware
United Brands Japan, Ltd. Japan
18
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ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned to
the address shown below so as to arrive not later than 9:00 A.M., New York time,
on ____________ , 1996.)
DELAYED DELIVERY CONTRACT
[Insert date of
initial public
offering]
XXXXXXXX BRANDS INTERNATIONAL, INC.
c/o [Name and address
of Underwriter[s]]
Gentlemen:
The undersigned hereby agrees to purchase from XXXXXXXX BRANDS
INTERNATIONAL, INC. a New Jersey corporation ("Company"), and the Company agrees
to sell to the undersigned, [If one delayed closing, insert---as of the date
hereof, for delivery on ___________, 1996 ("Delivery Date"),]
[$] ---------
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated ___________ , 19__ and a Prospectus
Supplement dated ____________ , 19__ , relating thereto, receipt of copies of
which is hereby acknowledged, at __ % of the principal amount thereof plus
accrued interest from ___________ , 19__, if any, and on the further terms and
conditions set forth in this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
Delivery Date Principal Amount
--------------- [$]---------------
--------------- [$] --------------
---------------
*/ Insert date which is third full business day prior to Delivery Date under the
Terms Agreement.
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Each of such delivery dates is hereinafter referred to as a
Delivery Date.]
Payment for the Securities that the undersigned has agreed to
purchase for delivery on---the--each--Delivery Date shall be made to the Company
or its order by certified or official bank check in New York Clearing House
(next day) funds at the office of ______________________________ at ___ .M. on--
the--such--Delivery Date upon delivery to the undersigned of the Securities to
be purchased by the undersigned---for delivery on such Delivery Date--in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full business days
prior to--the---such--Delivery Date.
It is expressly agreed that the provisions for delayed
delivery and payment are for the sole convenience of the undersigned; that the
purchase hereunder of Securities is to be regarded in all respects as a purchase
as of the date of this Contract; that the obligation of the Company to make
delivery of and accept payment for, and the obligation of the undersigned to
take delivery of and make payment for, Securities on--the--each--Delivery Date
shall be subject only to the conditions that (1) investment in the Securities
shall not at--the--such--Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below,
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is
in the Company's sole discretion and, without limiting the foregoing, need not
be on a first-come, first-served basis. If this Contract is acceptable to the
Company, it is requested that the Company sign the form of acceptance below and
mail or deliver one of the counterparts hereof to the undersigned at its address
set forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
----------------------------------
(Name of purchaser)
By
----------------------------------
(Title of Signatory)
----------------------------------
(Address of Purchaser)
Accepted, as of the above date,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By _____________________________________
Name:
Title:
20
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ANNEX II(A)
XXXXXXXX BRANDS INTERNATIONAL, INC. ("COMPANY")
DEBT SECURITIES
TERMS AGREEMENT
____________, 1996
XXXXXXXX BRANDS INTERNATIONAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Vice President, General Counsel and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Debt Securities of Xxxxxxxx Brands International, Inc. dated
_________ , 1996 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Debt Securities
Title:
Rank: [Senior Debt] [Subordinated Debt] Securities
Principal Amount: $
Interest Rate: ___ % from _________, 199_ , payable:
Maturity:
Form and Denomination:
Optional Redemption:
Sinking Fund:
Indenture:
Delayed Delivery Contracts: [authorized][not authorized]
Delivery Date:
Minimum Contract:
21
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Maximum aggregate principal amount:
Fee: __%
Purchase Price: ___%, plus accrued interest, or amortized original
issue discount, if any, from 19__.
Expected Reoffering Price:
Names and Addresses of Representatives:
The respective principal amounts of the Debt Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The provisions of the Underwriting Agreement are incorporated
herein by reference.
The Closing will take place at___ A.M., New York City time, on
___________ , 199__, at the offices of ___________________________________ .
The Securities will be made available for checking and
packaging at the office of not later than 2:00 p.m., New York City time, on the
business day prior to the Delivery Date.
Please signify your acceptance by signing the enclosed
response to us in the space provided and returning it to us.
Very truly yours,
22
23
SCHEDULE A
DEBT SECURITIES
UNDERWRITER PRINCIPAL AMOUNT
__________
Total __________
23
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To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
__________ , 19__ , relating to shares of our [Insert title of Securities] (the
"Terms Agreement"). We also confirm that, to the best of our knowledge after
reasonable investigation, the representations and warranties of the undersigned
in the Underwriting Agreement Basic Provisions filed as an exhibit to the
undersigned's registration statement on Form S-3 (No. 33-____ ) (together with
the Terms Agreement, the "Underwriting Agreement") are true and correct, no stop
order suspending the effectiveness of the Registration Statement (as defined in
the Underwriting Agreement) or of any part thereof has been issued and no
proceedings for that purpose have been instituted or, to the knowledge of the
undersigned, are contemplated by the Securities and Exchange Commission and,
subsequent to the respective dates of the most recent financial statements in
the Prospectus (as defined in the Underwriting Agreement), there has been (or in
the case of a form of prospectus filed pursuant to Rule 424(b)(1) or (4) there
will be, as of the date of such prospectus) no material adverse change in the
financial position or results of operations of the undersigned and its
subsidiaries except as set forth in or contemplated by the Prospectus.
Very truly yours,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By ________________________________
Name:
Title:
24
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ANNEX II(B)
XXXXXXXX BRANDS INTERNATIONAL, INC.
("COMPANY")
EQUITY SECURITIES
TERMS AGREEMENT
XXXXXXXX BRANDS INTERNATIONAL, INC.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000 ____________, 19__
Attention: Xxxxxx X. Xxxxx
Vice President, General Counsel
and Secretary
Dear Sirs:
On behalf of the several Underwriters named in Schedule A
hereto and for their respective accounts, we offer to purchase, on and subject
to the terms and conditions of the Underwriting Agreement Basic Provisions
relating to the Equity Securities of Xxxxxxxx Brands International Inc. dated
_____________ , 1994 ("Underwriting Agreement"), the following securities
("Securities") on the following terms:
Equity Securities
Title: [Capital Stock, par value $.33 per share] [Non-Voting Preferred Stock,
par value $1.00 per share] [Preference Stock without par value]
Number of Shares to be issued: ____ shares
[For Preferred Stock:
Voting Rights:
Preferred Stock Dividends: cash dividends to accrue at an annual rate of $ per
share, cumulative and payable quarterly in arrears on _______, 19__,__________,
19__ and ___________, 19__ .
Optional Redemption:
Mandatory Redemption/Sinking Fund:
Liquidation Preference: $____ per share plus___ .
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
_____ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
____ days
25
26
Conversion Provisions:
Other Terms
Price to Public: $______ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date:___ A.M. on , _____________, 19__ , at ________________ in New
York [Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:
[For Common Stock:
Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market
System] [American Stock Exchange]
Period Designated Pursuant to Paragraph 5(m)(i) of the Underwriting Agreement:
______ days.
Period Designated Pursuant to Paragraph 8(j) of the Underwriting Agreement:
_____ days.
Other Terms
Price to Public: $_______ per share
Underwriting Discounts and Commission:
Proceeds to Company:
Over-Allotment Option:
Delivery Date: __ A.M. on ____________ , 19__ , at ______________ in New York
[Clearing House (next day)] [Federal (same-day)] funds.
Name of Transfer Agent and Registrar:
Names and Addresses of Representatives:]
The respective shares of the Securities to be purchased by each of the
Underwriters are set forth opposite their names in Schedule A hereto.
[It is understood that we may, with your consent, amend this
offer to add additional Underwriters and reduce the number of shares to be
purchased by the Underwriters listed in Schedule A hereto by the number of
shares to be purchased by such additional Underwriters.]
26
27
The provisions of the Underwriting Agreement are incorporated
herein by reference [except that the obligations and agreements set forth in
Paragraph 3 ("Conditions of Company's Obligations; Defaulting Underwriters") of
the Underwriting Agreement shall not apply to the obligations of the
Underwriters to purchase the above Securities].
The Securities will be made available for checking and
packaging at the office of _________________ at least 24 hours prior to the
Delivery Date.
[Please signify your acceptance of our offer by signing the
enclosed response to us in the space provided and returning it to us.]
[Please signify your acceptance of the foregoing by return
wire not later than __ P.M. _____ today.]
Very truly yours,
27
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SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ------
Total _______
_______
28
29
To: [Insert name(s) of Representatives
or Underwriters]
As [Representative[s] of the Several]
Underwriter[s],
[c/o [Name of Representative]]
We accept the offer contained in your [letter] [wire], dated
____________ , 19__ , relating to _______ shares of our [Insert title of
Securities] (the "Terms Agreement"). We also confirm that, to the best of our
knowledge after reasonable investigation, the representations and warranties of
the undersigned in the Underwriting Agreement Basic Provisions filed as an
exhibit to the undersigned's registration statement on Form S-3 (No.
33-________) (together with the Terms Agreement, the "Underwriting Agreement")
are true and correct, no stop order suspending the effectiveness of the
Registration Statement (as defined in the Underwriting Agreement) or of any part
thereof has been issued and no proceedings for that purpose have been instituted
or, to the knowledge of the undersigned, are contemplated by the Securities and
Exchange Commission and, subsequent to the respective dates of the most recent
financial statements in the Prospectus (as defined in the Underwriting
Agreement), there has been (or in the case of a form of prospectus filed
pursuant to Rule 424(b)(1) or (4) there will be, as of the date of such
prospectus) no material adverse change in the financial position or results of
operations of the undersigned and its subsidiaries except as set forth in or
contemplated by the Prospectus.
Very truly yours,
XXXXXXXX BRANDS INTERNATIONAL, INC.
By _______________________________________
Name:
Title:
29
