EXHIBIT 1.1
CPC International Inc.
[Title of Debt Securities]
Underwriting Agreement
New York, New York
[Date]
To the Representatives named
in Schedule I hereto of
the Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
CPC International, Inc., a Delaware corporation (the
"Company") proposes to sell to the underwriters named in
Schedule II hereto (the "Underwriters"), for whom you are
acting as representatives (the "Representatives"), the
principal amount of its securities identified in Schedule I
hereto (the "Securities") to be issued under an indenture dated
as of April 15, 1988, as amended by the First Supplemental
Indenture and Amendment dated March 2, 1994 (collectively, the
"Indenture") between the Company and Bankers Trust Company, as
trustee (the "Trustee"). If the firm or firms listed in
Schedule II hereto include only the firm or firms listed in
Schedule I hereto, then the terms "Underwriters" and
"Representatives", as used herein, shall each be deemed to
refer to such firm or firms.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter
as set forth below in this Section 1. Certain terms used in
this Section 1 are defined in paragraph (c) hereof.
a. If the offering of the Securities is a Delayed
Offering (as specified in Schedule I hereto), paragraph
(i) below is applicable and, if the offering of the
Securities is a Non-Delayed Offering (as so specified),
paragraph (ii) below is applicable.
(i) The Company meets the requirements for
the use of Form S-3 under the Securities Act of
1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a
registration statement (the file number of which is
set forth in Schedule I hereto) on such Form,
including a basic prospectus, for registration
under the Act of the offering and sale of the
Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary
Final Prospectus, each of which has previously been
furnished to you. Such registration statement, as
so amended, has become effective. The offering of
the Securities is a Delayed Offering and,
accordingly, it is not necessary that any further
information, with respect to the Securities and the
offering thereof required by the Act and the rules
thereunder to be included in the Final Prospectus,
be included in an amendment to such registration
statement prior to the Effective Date. The Company
will next file with the Commission pursuant to
Rules 415 and 424(b)(2) or (5) a final supplement
to the form of prospectus included in such
registration statement relating to the Securities
and the offering thereof. As filed, such final
prospectus supplement shall include all required
information with respect to the Securities and the
offering thereof and, except to the extent the
Representatives shall agree in writing to a
modification, shall be in all substantive respects
in the form furnished to you prior to the Execution
Time or, to the extent not completed at the
Execution Time, shall contain only such specific
additional information and other changes (beyond
that contained in the Basic Prospectus and any
Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be
included or made therein.
(ii) The Company meets the requirements for
the use of Form S-3 under the Act and has filed
with the Commission a registration statement (the
file number of which is set forth in Schedule I
hereto) on such Form, including a basic prospectus,
for registration under the Act of the offering and
sale of the Securities. The Company may have filed
one or more amendments thereto, including a
Preliminary Final Prospectus, each of which has
previously been furnished to you. The Company will
next file with the Commission either (x) a final
prospectus supplement relating to the Securities in
accordance with Rules 430A and 424(b)(1) or (4), or
(y) prior to the effectiveness of such registration
statement, an amendment to such registration
statement, including the form of final prospectus
supplement. In the case of clause (x), the Company
has included in such registration statement, as
amended at the Effective Date, all information
(other than Rule 430A Information) required by the
Act and the rules thereunder to be included in the
Final Prospectus with respect to the Securities and
the offering thereof. As filed, such final
prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule
430A Information, together with all other such
required information, with respect to the
Securities and the offering thereof and, except to
the extent the Representatives shall agree in
writing to a modification, shall be in all
substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only
such specific additional information and other
changes (beyond that contained in the Basic
Prospectus and any Preliminary Final Prospectus) as
the Company has advised you, prior to the Execution
Time, will be included or made therein.
b. On the Effective Date, the Registration
Statement did or will, and when the Final Prospectus is
first filed (if required) in accordance with Rule 424(b)
and on the Closing Date, the Final Prospectus (and any
supplement thereto) will, comply in all material
respects with the applicable requirements of the Act and
the Securities Exchange Act of 1934 (the "Exchange Act")
and the respective rules thereunder; on the Effective
Date, the Registration Statement did not or will not
contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein
or necessary to make the statements therein not
misleading; on the Effective Date and on the Closing
Date the Indenture did or will comply in all material
respects with the requirements of the Trust Indenture
Act of 1939 (the "Trust Indenture Act") and the rules
thereunder; and, on the Effective Date, the Final
Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date, the Final
Prospectus (together with any supplement thereto) will
not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the
Registration Statement which shall constitute the
Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in
reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of
any Underwriter through the Representatives specifically
for use in connection with the preparation of the
Registration Statement or the Final Prospectus (or any
supplement thereto).
c. The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term
"the Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment
or amendments thereto became or become effective.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus
referred to in paragraph (a) above contained in the
Registration Statement at the Effective Date including,
in the case of a Non-Delayed Offering, any Preliminary
Final Prospectus. "Preliminary Final Prospectus" shall
mean any preliminary prospectus supplement to the Basic
Prospectus which describes the Securities and the
offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the
prospectus supplement relating to the Securities that is
first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus or, if, in the
case of a Non-Delayed Offering, no filing pursuant to
Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities, including the
Basic Prospectus, included in the Registration Statement
at the Effective Date. "Registration Statement" shall
mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits
and financial statements, as amended at the Execution
Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the
event any post-effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as
so amended. Such term shall include any Rule 430A
Information deemed to be included therein at the
Effective Date as provided by Rule 430A. "Rue 415",
"Rule 424", "Rule 430A" and "Regulation SK" refer to
such rules and regulations under the Act. "Rule 430A
Information" means information with respect to the
Securities and the offering thereof permitted to be
omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A. Any reference herein
to the Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to item 12 of
Form S-3 which were filed under the Exchange Act on or
before the Effective Date of the Registration Statement
or the issue date of the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as
the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any
Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of
any document under the Exchange Act after the Effective
Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be, deemed to
be incorporated therein by reference. A "Non-Delayed
Offering" shall mean an offering of securities which is
intended to commence promptly after the effective date
of a registration statement, with the result that,
pursuant to Rules 415 and 430A, all information (other
than Rule 430A Information) with respect to the
securities so offered must be included in such
registration statement at the effective date thereof. A
"Delayed Offering" shall mean an offering of securities
pursuant to Rule 415 which does not commence promptly
after the effective date of a registration statement
with the result that only information required pursuant
to Rule 415 need be included in such registration
statement at the effective date thereof with respect to
the securities so offered. Whether the offering of the
Securities is a Non-Delayed Offering or a Delayed
Offering shall be set forth in Schedule I hereto.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase
price set forth in Schedule I hereto, the principal amount of
Securities set forth opposite such Underwriter's name in
Schedule II hereto, except that, if Schedule I hereto
provides for the sale of Securities pursuant to delayed
delivery arrangements, the respective principal amounts of
Securities to be purchased by the Underwriters shall be as
set forth in Schedule II hereto less the respective amounts
of Contract Securities determined as provided below.
Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to Delayed Delivery
Contracts as hereinafter provided are herein called "Contract
Securities".
If so provided in Schedule I hereto, the
Underwriters are authorized to solicit offers to purchase
Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the
form of Schedule III hereto but with such changes therein as
the Company may authorize or approve. The Underwriters will
endeavor to make such arrangements and, as compensation
therefor, the Company will pay to the Representatives, for
the account of the Underwriters, on the Closing Date, the
percentage set forth in Schedule I hereto of the principal
amount of the Securities for which Delayed Delivery Contracts
are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings
banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. The
Company will enter into Delayed Delivery Contracts in all
cases where sales of Contract Securities arranged by the
Underwriters have been approved by the Company but, except as
the Company may otherwise agree, each such Delayed Delivery
Contract must be for not less than the minimum principal
amount set forth in Schedule I hereto and the aggregate
principal amount of Contract Securities may not exceed the
maximum aggregate principal amount set forth in Schedule I
hereto. The Underwriters will not have any responsibility in
respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be
purchased by each Underwriter as set forth in Schedule II
hereto shall be reduced by an amount which shall bear the
same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth
opposite the name of such Underwriter bears to the aggregate
principal amount set forth in Schedule II hereto, except to
the extent that you determine that such reduction shall be
otherwise than in such proportion and so advise the Company
in writing; provided, however, that the total principal
amount of Securities to be purchased by all Underwriters
shall be the aggregate principal amount set forth in Schedule
II hereto less the aggregate principal amount of Contract
Securities.
3. Delivery and Payment. Delivery of and payment
for the Underwriters' Securities shall be made at the office,
on the date and at the time specified in Schedule I hereto
(or such later date not later than five business days after
such specified date as the Representatives shall designate),
which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 8
hereof (such date and time of delivery and payment for the
Underwriters' Securities being herein called the "Closing
Date"). Delivery of the Underwriters' Securities shall be
made to the Representatives for the respective accounts of
the several Underwriters against payment by the several
Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by
certified or official bank check or checks drawn on or by a
New York Clearing House bank and payable in next day funds or
by wire transfer in same-day funds to an account or accounts
designated by the Company (the Company shall pay the
Representatives the overnight cost of providing such
immediately available funds). Certificates for the
Underwriters' Securities shall be registered in such names
and in such denominations as the Representatives may request
not less than two full business days in advance of the
Closing Date.
The Company agrees to have the Underwriters'
Securities available for inspection, checking and packaging
by the Representatives in New York, New York, not later than
1:00 PM on the business day prior to the Closing Date.
4. Agreements. The Company agrees with the
several Underwriters that:
a. The Company will use its best efforts to cause
the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, to become
effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment
of the Registration Statement or supplement (including
the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus unless the Company
has furnished you with a copy for your review prior to
filing and will not file any such proposed amendment or
supplement to which you reasonably object. Subject to
the foregoing sentence, the Company will cause the Final
Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i)
when the Registration Statement, if not effective at the
Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final Prospectus, and
any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to
termination of the offering of the Securities, any
amendment to the Registration Statement shall have been
filed or become effective, (iv) of any request by the
Commission for any amendment of the Registration
Statement or supplement to the Final Prospectus or for
any additional information, (v) of the issuance by the
Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that
purpose and (vi) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its
best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the
withdrawal thereof.
b. If, at any time when a prospectus relating to
the Securities is required to be delivered under the
Act, any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, or if it shall be
necessary to amend the Registration Statement or
supplement the Final Prospectus to comply with the Act
or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the
Commission, subject to the second sentence of paragraph
(a) of this Section 4, an amendment or supplement which
will correct such statement or omission or effect such
compliance.
c. As soon as practicable, the Company will make
generally available to its security holders and to the
Representatives an earnings statement or statements of
the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158
under the Act.
d. The Company will furnish to the
Representatives and counsel for the Underwriters,
without charge, copies of the Registration Statement
(including exhibits thereto) and, so long as delivery of
a prospectus by an Underwriter or dealer may be required
by the Act, as many copies of any Preliminary Final
Prospectus and the Final Prospectus and any supplement
thereto as the Representatives may reasonably request.
The Company will pay the expenses of printing or other
production of all documents relating to the offering.
e. The Company will furnish to the
Representatives and their counsel such information as
may be reasonably required by and otherwise to cooperate
with, the Representatives in qualifying the Securities
for offering and sale under the securities or blue sky
laws of such states as the Representatives may designate
(including the provisions of Florida blue sky law, if
requested, relating to issuers doing business with Cuba)
and to maintain such qualifications in effect as long as
required for the distribution of the Securities,
provided that the Company shall not be required to
qualify as a foreign corporation or a dealer or to
consent to the service of process under the laws of any
such state (except service of process with respect to
the offering and sale of the Securities) or to take any
action which would or could subject the Company to
taxation in any state where it is not now so subject;
and to promptly advise the Representatives of the
receipt by the Company of any notification with respect
to the suspension of the qualification of the Securities
for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
5. Conditions to the Obligations of the Under-
writers. The obligations of the Underwriters to purchase the
Underwriters' Securities shall be subject to the accuracy of
the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing
Date, to the accuracy of the statements of the Company made
in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and
to the following additional conditions:
a. If the Registration Statement has not become
effective prior to the Execution Time, unless the
Representatives agree in writing to a later time, the
Registration Statement will become effective not later
than (i) 6:00 P.M., New York City time, on the date of
determination of the public offering price, if such
determination occurred at or prior to 3:00 P.M., New
York City time, on such date or (ii) 12:00 Noon, New
York City time, on the business day following the day on
which the public offering price was determined, if such
determination occurred after 3:00 P.M., New York City
time, on such date; if filing of the Final Prospectus,
or any supplement thereto, is required pursuant to Rule
424(b), the Final Prospectus, and any such supplement,
shall have been filed in the manner and within the time
period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
b. The Company shall have furnished to the
Representatives the opinion of Xxxxxxxx X. Xxxxxx, Esq.,
Senior Vice President and General Counsel for the
Company, dated the Closing Date, to the effect that:
(i) each of the Company and the Subsidiaries
of the Company set forth in Schedule IV hereto
(individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is
chartered or organized (which jurisdiction is set
forth in Schedule IV hereto), with full corporate
power and authority to own its properties and
conduct its business as described in the Final
Prospectus, and is duly qualified to do business as
a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such
qualification wherein it owns or leases material
properties or conducts material business;
(ii) all the outstanding shares of capital
stock of each Subsidiary have been duly and validly
authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth
in the Final Prospectus, all outstanding shares of
capital stock of the Subsidiaries are owned by the
Company either directly or through wholly owned
subsidiaries free and clear of any perfected
security interest and, to the knowledge of such
counsel after due inquiry, any other security
interests, claims, liens or encumbrances;
(iii) the Company's authorized equity
capitalization is as set forth in the Final
Prospectus; the Securities conform in all material
respects to the description thereof contained in
the Final Prospectus; [if the Securities are to be
listed on any stock exchange, insert: and
authorization for listing on the
Exchange has been given, subject to official notice
of issuance and evidence of satisfactory
distribution, or the Company has filed a
preliminary listing application and all required
supporting documents with respect to the Securities
with such stock exchange and such counsel has no
reason to believe that the Securities will not be
authorized for listing, subject to official notice
of issuance and evidence of satisfactory
distribution;]
(iv) to the best knowledge of such counsel,
there is no pending or threatened action, suit or
proceeding before any court or governmental agency,
authority or body or any arbitrator involving the
Company or any of its subsidiaries, of a character
required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Final Prospectus, and there is no franchise,
contract or other document of a character required
to be described in the Registration Statement or
Final Prospectus, or to be filed as an exhibit,
which is not described or filed as required; and
the statements included or incorporated in the
Final Prospectus describing any legal proceedings
or material contracts or agreements relating to the
Company fairly summarize such matters in all
material respects;
(v) no consent, approval, authorization or
order of any court or governmental agency or body
is required for the consummation of the
transactions contemplated herein or in any Delayed
Delivery Contracts, except such as have been
obtained under the Act and such as may be required
under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of
the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been
obtained;
(vi) neither the execution and delivery of the
Indenture, the issue and sale of the Securities,
nor the consummation of any other of the
transactions herein contemplated nor the
fulfillment of the terms hereof or of any Delayed
Delivery Contracts will conflict with, result in a
breach of, or constitute a default under the
charter or by-laws of the Company or the terms of
any indenture or other agreement or instrument
known to such counsel and to which the Company or
any of its subsidiaries is a party or bound, or any
order or regulation known to such counsel to be
applicable to the Company or any of its
subsidiaries of any court, regulatory body,
administrative agency, governmental body or
arbitrator having jurisdiction over the Company or
any of its subsidiaries, except for such conflict,
breach or default which, whether individually or in
the aggregate, would not be expected to have to
have a material adverse affect on the operations
business or financial condition of the Company and
its subsidiaries, taken as a whole; and
(vii) no holders of securities of the Company
have rights to the registration of such securities
under the Registration Statement.
In addition, such counsel shall state that it has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and
representatives of the Underwriters, at which the
contents of the Registration Statement and Prospectus
were discussed and, although such counsel has not
independently verified, is not passing upon and does not
assume responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus, no facts have come to the
attention of such counsel, in the course of such
participation, that causes it to believe that the
Registration Statement, or any post-effective amendment
thereto, as of the date it was declared effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement
thereto, at the date of such Prospectus or such
supplement and at all times up to and including the
Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary
in order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading (it being understood that such counsel need
express no opinion with respect to the financial
statements and schedules and other financial and
statistical data included in the Registration Statement
or Prospectus or with respect to the Trustee's Statement
of Eligibility on Form T-1).
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the corporate laws of the State
of Delaware or the laws of the State of New York or the
United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of
good standing believed to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as
to matters of fact, to the extent deemed proper, on
certificates of responsible officers of the Company and
public officials. References to the Final Prospectus in
this paragraph (b) include any supplements thereto at
the Closing Date.
c. The Company shall have furnished to the
Representatives the opinion of a law firm designated by
the Company and reasonably acceptable to the
Representatives or from Xxxxxxxx X. Xxxxxx, Esq., Senior
Vice President and General Counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Indenture has been duly authorized,
executed and delivered by the Company, has been
duly qualified under the Trust Indenture Act, and
assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a legal, valid
and binding instrument enforceable against the
Company in accordance with its terms, except as
enforceability may be limited by bankruptcy,
reorganization, insolvency, moratorium or other
laws relating to or affecting creditors' rights
generally, by general equitable principles
(regardless of whether such enforceability is
considered in a proceeding in equity or at law) or
by an implied covenant of good faith and fair
dealing; and the Securities have been duly
authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers
thereof pursuant to Delayed Delivery Contracts, in
the case of any Contract Securities, will
constitute legal, valid and binding obligations of
the Company entitled to the benefits of the
Indenture, except as enforceability may be limited
by bankruptcy, reorganization, insolvency,
moratorium or other laws relating to or affecting
creditors' rights generally, by general equitable
principles (regardless of whether such
enforceability is considered in a proceeding in
equity or at law) or by an implied covenant of good
faith and fair dealing;
(ii) the Registration Statement and any
amendments thereof, have become effective under the
Act; any required filing of the Basic Prospectus,
any Preliminary Final Prospectus and the Final
Prospectus, and any supplements thereto, pursuant
to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and
to the best knowledge of such counsel, no stop
order suspending the effectiveness of the
Registration Statement as amended has been issued,
no proceedings for that purpose have been
instituted or threatened, and the Registration
Statement and the Final Prospectus (other than the
financial statements and other financial and
statistical information contained therein as to
which such counsel need express no opinion) comply
as to form in all material respects with the
applicable requirements of the Act and the Exchange
Act and the respective rules and regulations
thereunder;
(iii) this Agreement and any Delayed Delivery
Contracts have been duly authorized, executed and
delivered by the Company;
In addition, such counsel shall state that it has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent public accountants of the Company and
representatives of the Underwriters, at which the
contents of the Registration Statement and Prospectus
were discussed and, although such counsel has not
independently verified, is not passing upon and does
not assume responsibility for, the accuracy,
completeness or fairness of the statements contained in
the Registration Statement or Prospectus, no facts have
come to the attention of such counsel, in the course of
such participation, that causes it to believe that the
Registration Statement, or any post-effective amendment
thereto, as of the date it was declared effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement
thereto, at the date of such Prospectus or such
supplement and at all times up to and including the
Closing Date, contained or contains an untrue statement
of a material fact or omitted or omits to state a
material fact required to be stated therein or
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading (it being understood that such
counsel need express no opinion with respect to the
financial statements and schedules and other financial
and statistical data included in the Registration
Statement or Prospectus or with respect to the
Trustee's Statement of Eligibility on Form T-1).
In rendering such opinion, such counsel may rely (A) as
to matters involving the application of laws of any
jurisdiction other than the corporate laws of the State
of Delaware or the laws of the State of New York or the
United States, to the extent deemed proper and
specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and
who are satisfactory to counsel for the Underwriters
and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the
Company and public officials. References to the Final
Prospectus in this paragraph (c) include any
supplements thereto at the Closing Date.
d. The Representatives shall have received from
a law firm, which law firm shall be designated by the
Company and approved by the Representatives to act as
counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance
and sale of the Securities, the Indenture, any Delayed
Delivery Contracts, the Registration Statement, the
Final Prospectus (together with any supplement thereto)
and other related matters as the Representatives may
reasonably require, and the Company shall have
furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon
such matters.
e. The Company shall have furnished to the
Representatives a certificate of the Company, signed by
the Chairman of the Board or the President or a Senior
Vice President and the Treasurer or the Comptroller of
the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined
the Registration Statement, the Final Prospectus, any
supplement to the Final Prospectus and this Agreement
and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in
all material respects on and as of the Closing Date
with the same effect as if made on the Closing Date
and the Company has complied with all the
agreements and satisfied all the conditions on its
part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the
effectiveness of the Registration Statement has
been issued and no proceedings for that purpose
have been instituted or, to the actual knowledge of
such officers, threatened; and
(iii) since the date of the most recent
financial statements included in the Final
Prospectus (exclusive of any supplement thereto),
there has been no material adverse change in the
condition (financial or other), earnings, business
or properties of the Company and its subsidiaries,
whether or not arising from transactions in the
ordinary course of business, except as set forth in
or contemplated in the Final Prospectus (exclusive
of any supplement thereto).
f. The Representatives shall have received from
the Company's independent public accountants letters
dated, respectively, as of the Execution Time and the
Closing Date, and addressed to the Underwriters
containing statements and information of the type
customarily included in accountants' "comfort letters"
to underwriters.
g. Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in
the Registration Statement (exclusive of any amendment
thereof) and the Final Prospectus (exclusive of any
supplement thereto), there shall not have been (i) any
change or decrease specified in the letter or letters
referred to in paragraph (e) of this Section 5 or (ii)
any change, or any development involving a prospective
change, in or affecting the business or properties of
the Company or its subsidiaries, the effect of which in
any case referred to in clause (i) or (ii) above, is, in
the reasonable judgment of the Representatives, so
material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery
of the Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the
Final Prospectus (exclusive of any supplement thereto).
h. Subsequent to the Execution Time, there shall
not have been any decrease in the ratings of any of the
Company's debt securities by Xxxxx'x Investors Service,
Inc. or Standard & Poor's Corporation.
i. Prior to the Closing Date, the Company shall
have furnished to the Representatives such further
information, certificates and documents as the
Representatives may reasonably request.
j. The Company shall have accepted Delayed
Delivery Contracts in any case where sales of Contract
Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section
5 shall not have been fulfilled in all material respects when
and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and
its counsel, this Agreement and all obligations of the
Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or
by telephone or telegraph confirmed in writing.
6. Reimbursement of Underwriters' Expenses. If
the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied,
because of any termination pursuant to Section 9 hereof or
because of any refusal, inability or failure on the part of
the Company to perform any agreement herein or comply with
any provision hereof other than by reason of a default by any
of the Underwriters, the Company will reimburse the
Underwriters severally upon demand for all reasonable
out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by
them in connection with the proposed purchase and sale of the
Securities.
7. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each
Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration
statement for the registration of the Securities as
originally filed or in any amendment thereof, or in the Basic
Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or
action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company
by or on behalf of any Underwriter through the
Representatives specifically for use in connection with the
preparation thereof and (ii) such indemnity with respect to
the Basic Prospectus or any Preliminary Final Prospectus
shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person
asserting any such loss, claim, damage or liability purchased
the Securities which are the subject thereof if such person
did not receive a copy of the Final Prospectus (or the Final
Prospectus as supplemented) excluding documents incorporated
therein by reference at or prior to the confirmation of the
sale of such Securities to such person in any case where such
delivery is required by the Act and the untrue statement or
omission of a material fact contained in the Basic Prospectus
or any Preliminary Final Prospectus was corrected in the
Final Prospectus (or the Final Prospectus as supplemented).
This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
b. Each Underwriter severally agrees to indemnify
and hold harmless the Company, each of its directors, each of
its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use
in the preparation of the documents referred to in the
foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise
have. The Company acknowledges that the statements set forth
in the last paragraph of the cover page, under the headings
"Underwriting" and "Plan of Distribution" and, if Schedule I
hereto provides for sales of Securities pursuant to delayed
delivery arrangements, in the last sentence under the heading
"Delayed Delivery Arrangements" in any Preliminary Final
Prospectus or the Final Prospectus constitute the only
information furnished in writing by or on behalf of the
several Underwriters for inclusion in the documents referred
to in the foregoing indemnity, and you, as the
Representatives, confirm that such statements are correct.
c. Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than
under this Section 7. In case any such action is brought
against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to appoint counsel
satisfactory to such indemnified party to represent the
indemnified party in such action; provided, however, that if
the defendants in any such action include both the
indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other
indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election
so to appoint counsel to defend such action and approval by
the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to
the next preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) of this
Section 7, representing the indemnified parties under such
paragraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability
shall be only in respect of the counsel referred to in such
clause (i) or (iii).
d. In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) of this Section 7 is due in
accordance with its terms but is for any reason held by a
court to be unavailable from the Company on grounds of policy
or otherwise, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same)
to which the Company and one or more of the Underwriters may
be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage
that the underwriting discount bears to the sum of such
discount and the purchase price of the Securities specified
in Schedule I hereto and the Company is responsible for the
balance; provided, however, that (y) in no case shall any
Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such
Underwriter hereunder and (z) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act shall have the same
rights to contribution as such Underwriter, and each person
who controls the Company within the meaning of either the Act
or the Exchange Act, each officer of the Company who shall
have signed the Registration Statement and each director of
the Company shall have the same rights to contribution as the
Company, subject in each case to clause (z) of this paragraph
(d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for
contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than
under this paragraph (d).
8. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the
Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters
shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set
forth opposite their names in Schedule II hereto bears to the
aggregate amount of Securities set forth opposite the names
of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the
aggregate amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase
shall exceed 10% of the aggregate amount of Securities set
forth in Schedule II hereto, the remaining Underwriters shall
have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability
to any nondefaulting Underwriter or the Company. In the
event of a default by any Underwriter as set forth in this
Section 8, the closing date shall be postponed for such
period, not exceeding seven days, as the Representatives
shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any
other documents or arrangements may be effected. Nothing
contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its
default hereunder.
9. Termination. This Agreement shall be subject
to termination in the absolute discretion of the
Representatives, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such
time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York, Chicago or
Pacific Stock Exchange or trading in securities generally on
the New York Stock Exchange shall have been suspended or
limited or minimum prices shall have been established on such
Exchange, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or material escalation
of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such
as to make it, in the judgment of the Representatives,
impracticable to market the Securities.
10. Representations and Indemnities to Survive.
The respective agreements, representations, warranties,
indemnities and other statements of the Company or its
officers and of the Underwriters set forth in or made
pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the
Securities. The provisions of Sections 6 and 7 hereof shall
survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be
in writing and effective only on receipt, and, if sent to the
Representatives, will be mailed, delivered or telegraphed and
confirmed to them, at the address specified in Schedule I
hereto; or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at International Plaza,
X.X. Xxx 0000, Xxxxxxxxx Xxxxxx, Xxx Xxxxxx 00000, attention
of the Senior Vice President and General Counsel.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be
governed by and construed in accordance with the laws of the
State of New York, without regard to principles of conflicts
of laws.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us
the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
CPC International Inc.
By:
[Title]
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
[[Name of Representative]
_________________________
(name of co-manager, if any)
By: [Name of Representative]
By:
[Title]
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.]
[[Name of Representative]
By:
[Title]
For itself and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.]
SCHEDULE I
Underwriting Agreement dated
Registration Statement No. 33-
Representative(s): [Name of Representative]
[Name of co-manager, if any]
[Address of Representative]
Attention:
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization, if
any):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: [Delayed Offering] [Non-Delayed Offering]
Delayed Delivery Arrangements:
Fee:
Minimum principal amount of each contract: $
Maximum aggregate principal amount of all contracts: $
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
$
Total.................... $_____________
SCHEDULE III
Delayed Delivery Contract
[Date]
Name of Underwriter
[address]
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from CPC
International Inc. (the "Company"), and the Company agrees to
sell the undersigned, on 19 (the "Delivery Date"),
$ principal amount of the Company's (the
"Securities") offered by the Company's prospectus dated
, 19 , and related Prospectus Supplement dated
, 19 , receipt of a copy of which is hereby
acknowledged, at a purchase price of % of the principal
amount thereof, plus [accrued interest] [amortization of
original issue discount], if any, thereon from ,
19 , to the date of payment and delivery, and on the further
terms and conditions set forth in this contract.
Payment for the Securities to be purchased by the
undersigned shall be made on or before 11:00 A.M., New York
City time, on the Delivery Date to or upon the order of the
Company in New York Clearing House (next day) funds, at your
office or at such other place as shall be agreed between the
Company and the undersigned, upon delivery to the undersigned
of the Securities in definitive fully registered form and in
such authorized denominations and registered in such names as
the undersigned may request by written or telegraphic
communication addressed to the Company not less than three
full business days prior to the Delivery Date. If no request
is received, the Securities will be registered in the name of
the undersigned and issued in a denomination equal to the
aggregate principal amount of Securities to be purchased by
the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery
of and make payment for Securities on the Delivery Date, and
the obligation of the Company to sell and deliver Securities
on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the
failure thereof) that (1) the purchase of Securities to be
made by the undersigned, which purchase the undersigned
represents is not prohibited on the date hereof, shall not on
the Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (2) the
Company, on or before the Delivery Date, shall have sold to
certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to
the Underwriting Agreement referred to in the Prospectus and
Prospectus Supplement mentioned above. Promptly after
completion of such sale to the Underwriters, the Company will
mail or delivery to the undersigned at its address set forth
below notice to such effect, accompanied by a copy of the
opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the
undersigned to take delivery of and make payment for the
Securities, and the obligation of the Company to cause the
Securities to be sold and delivered, shall not be affected by
the failure of any purchaser to take delivery of and make
payment for the Securities pursuant to other contracts
similar to this contract.
This contract will inure to the benefit of and be
binding upon the parties hereto and their respective
successors, but will not be assignable by either party hereto
without the written consent of the other.
It is understood that acceptance of this contract
and other similar contracts is in the Company's sole
discretion and, without limiting the foregoing, need not be
on a first come, first served basis. If this contract is
acceptable to the Company, it is required that the Company
sign the form of acceptance below and mail or deliver one of
the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the
Company and the undersigned, as of the date first above
written, when such counterpart is so mailed or delivered.
This agreement shall be governed by and construed
in accordance with the laws of the State of New York, without
regard to principles of conflicts of laws.
Very truly yours,
____________________________________
(Name of Purchaser)
By
(Signature and Title of Officer)
______________________________________
(Address)
Accepted:
CPC International Inc.
By ________________________
[Title]
SCHEDULE IV
CPC International Inc.
Jurisdiction of
Subsidiaries Incorporation
Xxxxxx Foods Company, Inc. Delaware
Best Foods-Caribbean, Inc. Delaware
X. X. Xxxxxx, Inc. New York
Xxxxxxxxx'x, Inc. Delaware
