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13,622,500 SHARES
INTERNATIONAL HOME FOODS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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13,622,500 Shares
INTERNATIONAL HOME FOODS, INC.
Common Stock
UNDERWRITING AGREEMENT
__________, 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
BT ALEX. XXXXX INCORPORATED
CHASE SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
XXXXXX XXXXXXX & CO. INCORPORATED
As representatives of the several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL LIMITED
BT ALEX. XXXXX INTERNATIONAL PLC
CHASE MANHATTAN SECURITIES LIMITED
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
XXXXXXX, XXXXX INTERNATIONAL
XXXXXX XXXXXXX & CO. INTERNATIONAL
As representatives of the several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx International Limited
00 Xxxxxxxxxxx
Xxxxxx, XX0X-0XX, Xxxxxxx
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Dear Sirs:
International Home Foods, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several Underwriters (as defined
below), 10,526,539 shares of its common stock, par value $.01 per share, and a
stockholder of the Company named in Schedule I hereto (the "SELLING
STOCKHOLDER") proposes to sell to the several Underwriters an 3,091,141 shares
of common stock of the Company (the "U.S. FIRM SHARES"). It being understood
that subject to the conditions hereinafter stated, 10,898,000 Firm Shares (the
"U.S. FIRM SHARES") will be sold to the several U.S. Underwriters named in
Schedule II hereto (the "U.S. UNDERWRITERS") in connection with the offering
and sale of such U.S. Firm Shares in the United States and Canada to United
States and Canadian Persons (as such terms are defined in the Agreement between
U.S. Underwriters and International Managers of even date herewith), and
2,724,500 Firm Shares (the "INTERNATIONAL FIRM SHARES") will be sold to the
several International Managers named in Schedule III hereto (the "INTERNATIONAL
MANAGERS") in connection with the offering and sale of such International
Shares outside the United States and Canada to persons other than the United
States and Canadian Persons. Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, BT Alex. Xxxxx Incorporated, Chase Securities Inc., Credit Suisse
First Boston Corporation, Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated shall act as representatives (the "U.S. REPRESENTATIVES") of the
several U.S. Underwriters, and Xxxxxxxxx, Lufkin & Xxxxxxxx International
Limited, BT Alex. Xxxxx International, a Division of Bankers Trust PLC, Chase
Manhattan International Limited, Credit Suisse First Boston (Europe) Limited,
Xxxxxxx, Xxxxx International and Xxxxxx Xxxxxxx & Co. International, shall act
as representatives of the several International Managers. The U.S.
Underwriters and the International Managers are hereinafter collectively
referred to as the "UNDERWRITERS". The Company and the Selling Stockholder are
hereinafter sometimes referred to collectively as the "SELLERS".
The Company also proposes to issue and sell not more than 2,043,374
shares of Common Stock and the Selling Stockholder proposes to sell not more
than 464,421 shares of common stock (or not more than 2,043,375 shares in the
aggregate) (collectively, the "ADDITIONAL SHARES"), if requested by the U.S.
Underwriters as provided in Section 2 hereof. The Firm Shares and the
Additional Shares are hereinafter referred to collectively as the "SHARES". The
shares of common stock of the Company to be outstanding after giving effect to
the sales contemplated hereby are hereinafter referred to as the "COMMON
STOCK".
SECTION 1. Registration Statement and Prospectus. The Company
has prepared and filed with the Securities and Exchange Commission (the
"COMMISSION") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "ACT"), a registration statement on Form S-1, including a
prospectus, relating to the Shares, which may be amended. The registration
statement contains two prospectuses to be used in connection with the offering
and sale of the shares: the U.S. Prospectus to be used in connection with the
offering and sale of shares in the United States and Canada to United Stated
and Canadian Persons, and the international prospectus, to be used in
connection
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with the offering and sale of Shares outside the United States and Canada to
person other than United States and Canadian Persons. The international
prospectus is identical to the U.S. prospectus except for the front and back
cover pages. The registration statement, as amended at the time it became
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act, is hereinafter collectively referred to as the "REGISTRATION
STATEMENT"; and the U.S. prospectus and the international prospectus in the
respective forms first used to confirm sales of Shares are hereinafter referred
to as the "PROSPECTUS". If the Company has filed or is required pursuant to
the terms hereof to file a registration statement pursuant to Rule 462(b) under
the Act registering additional shares of Common Stock (a "RULE 462(B)
REGISTRATION STATEMENT"), then, unless otherwise specified, any reference
herein to the term "Registration Statement" shall be deemed to include such
Rule 462(b) Registration Statement.
SECTION 2. Agreements to Sell and Purchase and Lock-Up
Agreements. On the basis of the representations and warranties contained in
this Agreement, and subject to its terms and conditions, (i) the Company agrees
to issue and sell 10,526,359 Firm Shares, (ii) the Selling Stockholder agrees
to sell 3,096,141 Firm Shares and (iii) each Underwriter agrees, severally and
not jointly, to purchase from each Seller at a price per Share of $______ (the
"PURCHASE PRICE") the number of Firm Shares (subject to such adjustments to
eliminate fractional shares as you may determine) set forth opposite the name
of such Underwriter in Schedules II and III hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions , the Company agrees to
issue and sell up to 1,578,974 of the Additional Shares and the Selling
Stockholder agrees to sell up to 464,421 of the Additional Shares and the U.S.
Underwriters shall have the right to purchase, severally and not jointly, up to
2,043,375 Additional Shares from the Company and the Selling Stockholder at the
Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. The U.S. Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof
to the Company and the Selling Stockholder within 30 days after the date of
this Agreement; provided, however, that in the event that the U.S. Underwriters
do no exercise their over-allotment option in full, the first 464,421
Additional Shares shall be purchased from the Selling Stockholder, with the
remainder, if any, to be purchased from the Company. The U.S. Representatives
shall give any such notice on behalf of the U.S. Underwriters and such notice
shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof, which
date shall be a business day (i) no earlier than one full business day after
such notice has been given (and, in any event, no earlier than the Closing Date
(as hereinafter defined)) and (ii) no later than ten business days after such
notice has been given. If any Additional Shares are to be purchased, each
U.S. Underwriter, severally and not jointly,
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agrees to purchase from each Seller the number of Additional Shares (subject to
adjustment to eliminate fractional shares as you may determine) which bears the
same proportion to the total number of Additional Shares to be purchased from
such Seller as the number of U.S. Firm Shares set forth opposite the name of
such U.S. Underwriter in Schedule I bears to the total number of U.S. Firm
Shares.
Each Seller hereby agrees, severally and not jointly, not to (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (ii) enter into any swap or other arrangement
that transfers all or a portion of the economic consequences associated with
the ownership of any Common Stock (regardless of whether any of the
transactions described in clause (i) or (ii) is to be settled by the delivery
of Common Stock, or such other securities, in cash or otherwise), except to the
Underwriters pursuant to this Agreement, for a period of 180 days after the
date of the Prospectus without the prior written consent of Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan consistent with past practice and (ii) the Company
may issue shares of Common Stock upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof. The Company also
agrees not to file any registration statement with respect to any shares of
Common Stock or any securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. In addition, the Selling Stockholder agrees that, for a period of
180 days after the date of the Prospectus without the prior written consent of
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, it will not make any
demand for, or exercise any right with respect to, the registration of any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock. The Company shall, prior to or concurrently
with the execution of this Agreement, deliver an agreement executed by (i) the
Selling Stockholder, (ii) each of the directors and officers of the Company and
(iii) each stockholder listed on Annex I hereto to the effect that such person
will not, during the period commencing on the date such person signs such
agreement and ending 180 days after the date of the Prospectus, without the
prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
(A) engage in any of the transactions described in the first sentence of this
paragraph or (B) make any demand for, or exercise any right with respect to,
the registration of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock. In addition, each such
director, officer, and stockholder may make a bona fide gift or gifts or may
make a distribution to limited partners or shareholders provided that such
transferee or transferees similarly agree in writing for the benefit of the
Representatives to the effect set forth in (A) and (B) above for a period of
180 days after the date of the Prospectus.
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The Company hereby confirms its engagement of Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation ("DLJ") as, and DLJ hereby confirms its
agreement with the Company to render services as, a "qualified independent
underwriter", within the meaning of Section (b)(15) of Rule 2720 of the
National Association of Securities Dealers, Inc. with respect to the offering
and sale of the Shares. DLJ, solely in its capacity as the qualified
independent underwriter and not otherwise, is referred to herein as the "QIU".
As compensation for the services of the QIU hereunder, the Company agrees to
pay the QIU $5,000 on the Closing Date. The price at which the Shares will be
sold to the public shall not be higher than the maximum price recommended by
the QIU.
SECTION 3. Terms of Public Offering. The Sellers are advised by
you that the Underwriters propose (i) to make a public offering of their
respective portions of the Shares as soon after the execution and delivery of
this Agreement as in your judgment is advisable and (ii) initially to offer the
Shares upon the terms set forth in the Prospectus.
SECTION 4. Delivery and Payment. Delivery to the Underwriters
of and payment for the Firm Shares shall be made at 9:00 A.M., New York City
time, on __________ , 1997 (the "CLOSING DATE") at such place as you shall
designate. The Closing Date and the location of delivery of and payment for
the Firm Shares may be varied by agreement between the U.S. Representatives and
the Company.
Delivery to the U.S. Underwriters of and payment for any Additional
Shares to be purchased by the U.S. Underwriters shall be made at such place as
the U.S. Representatives shall designate at 9:00 A.M., New York City time, on
the date specified in the applicable exercise notice given by you pursuant to
Section 2 (an "OPTION CLOSING DATE"). Any such Option Closing Date and the
location of delivery of and payment for such Additional Shares may be varied by
agreement between the U.S. Representatives and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection
not later than 9:30 A.M., New York City time, on the business day prior to the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes thereon duly paid by the respective Sellers, for the
respective accounts of the several Underwriters, against payment to the Sellers
of the Purchase Price therefor by wire transfer of Federal or other funds
immediately available in New York City.
SECTION 5. Agreements of the Company. The Company agrees with
you:
(a) To advise you promptly and, if requested by you, to confirm
such advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus or
for additional information,
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(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or the
initiation of any proceeding for such purposes, (iii) when any amendment to the
Registration Statement becomes effective, (iv) if the Company is required to
file a Rule 462(b) Registration Statement after the effectiveness of this
Agreement, when the Rule 462(b) Registration Statement has become effective and
(v) of the happening of any event during the period referred to in Section 5(d)
below which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires any additions to or
changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration Statement, the
Company will make every reasonable effort to obtain the withdrawal or lifting
of such order at the earliest possible time.
(b) To furnish to you three signed copies of the Registration
Statement as first filed with the Commission and of each amendment to it,
including all exhibits, and to furnish to you and each Underwriter designated
by you such number of conformed copies of the Registration Statement as so
filed and of each amendment to it, with and without exhibits, as you may
reasonably request.
(c) To prepare the Prospectus, the form and substance of which
shall be satisfactory to you, and to file the Prospectus in such form with the
Commission within the applicable period specified in Rule 424(b) under the Act;
during the period specified in Section 5(d) below, not to file any further
amendment to the Registration Statement and not to make any amendment or
supplement to the Prospectus of which you shall not previously have been
advised or to which you shall reasonably object after being so advised; and,
during such period, to prepare and file with the Commission, promptly upon your
reasonable request, any amendment to the Registration Statement or amendment or
supplement to the Prospectus which may be necessary or advisable in connection
with the distribution of the Shares by you, and to use its reasonable efforts
to cause any such amendment to the Registration Statement to become promptly
effective.
(d) Promptly after the Registration Statement becomes effective
and from time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, to furnish in New York
City to each Underwriter and any dealer as many copies of the Prospectus (and
of any amendment or supplement to the Prospectus) as such Underwriter or dealer
may reasonably request.
(e) If during the period specified in Section 5(d), any event
shall occur or condition shall exist as a result of which, in the opinion of
counsel for the Underwriters, it becomes necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if, in the opinion of counsel for the Underwriters, it is necessary to amend
or supplement the Prospectus to comply with applicable law,
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forthwith to prepare and file with the Commission an appropriate amendment or
supplement to the Prospectus so that the statements in the Prospectus, as so
amended or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading, or so that the Prospectus will comply with
applicable law, and to furnish to each Underwriter and to any dealer as many
copies thereof as such Underwriter or dealer may reasonably request.
(f) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters and
by dealers under the state securities or Blue Sky laws of such jurisdictions as
you may request, to continue such registration or qualification in effect so
long as required for distribution of the Shares and to file such consents to
service of process or other documents as may be necessary in order to effect
such registration or qualification; provided, however, that the Company shall
not be required in connection therewith to qualify as a foreign corporation in
any jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other
than as to matters and transactions relating to the Prospectus, the
Registration Statement, any preliminary prospectus or the offering or sale of
the Shares, in any jurisdiction in which it is not now so subject.
(g) To mail and make generally available to its stockholders as
soon as practicable an earnings statement covering the twelve-month period
ending December 31, 1998, that shall satisfy the provisions of Section 11(a) of
the Act, and to advise you in writing when such statement has been so made
available.
(h) During the period of three years after the date of this
Agreement, to furnish to you as soon as available copies of all reports or
other communications furnished to the record holders of Common Stock or
furnished to or filed with the Commission or any national securities exchange
on which any class of securities of the Company is listed and such other
publicly available information concerning the Company and its subsidiaries as
you may reasonably request.
(i) Whether or not the transactions contemplated in this Agreement
are consummated or this Agreement is terminated, to pay or cause to be paid all
expenses incident to the performance of the Sellers' obligations under this
Agreement, including: (i) the fees, disbursements and expenses of the
Company's counsel, the Company's accountants and any Selling Stockholder's
counsel (in addition to the Company's counsel) in connection with the
registration and delivery of the Shares under the Act and all other fees and
expenses in connection with the preparation, printing, filing and distribution
of the Registration Statement (including financial statements and exhibits),
any preliminary prospectus, the Prospectus and all amendments and supplements
to any of the foregoing, including the mailing and delivering of copies thereof
to the Underwriters and dealers in the quantities specified herein, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any
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transfer or other taxes payable thereon, (iii) all costs of printing or
producing this Agreement and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Shares, (iv) all expenses
in connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of the several states and all
costs of printing or producing any Preliminary and Supplemental Blue Sky
Memoranda in connection therewith (including the filing fees and reasonable
fees and disbursements of counsel for the Underwriters in connection with such
registration or qualification and memoranda relating thereto), (v) the filing
fees and reasonable disbursements of counsel for the Underwriters in connection
with the review and clearance of the offering of the Shares by the National
Association of Securities Dealers, Inc., (vi) all fees and expenses in
connection with the preparation and filing of the registration statement on
Form 8-A relating to the Common Stock and all costs and expenses incident to
the listing of the Shares on the New York Stock Exchange, Inc. (the "NYSE"),
(vii) the cost of printing certificates representing the Shares, (viii) the
costs and charges of any transfer agent, registrar and/or depositary, (ix) the
fees and expenses of the QIU (including the fees and disbursements of counsel
for the QIU), and (x) all other costs and expenses incident to the performance
of the obligations of the Company and the Selling Stockholder hereunder for
which provision is not otherwise made in this Section. The provisions of this
Section shall not supersede or otherwise affect any agreement that the Company
and the Selling Stockholder may otherwise have for allocation of such expenses
among themselves.
(j) To use its reasonable efforts (i) to list, subject to notice
of issuance, the Shares on the NYSE and (ii) provided that the Company is a
reporting company under Section 12(b), 12(g) or 15(d) of the Exchange Act, to
maintain the listing of the Shares on the NYSE for a period of three years
after the date of this Agreement.
(k) To use its best efforts to do and perform all things required
or necessary to be done and performed under this Agreement by the Company prior
to the Closing Date or any Option Closing Date, as the case may be, and to
satisfy all conditions precedent to the delivery of the Shares.
(l) If the Registration Statement at the time of the effectiveness
of this Agreement does not cover all of the Shares, to file a Rule 462(b)
Registration Statement with the Commission registering the Shares not so
covered in compliance with Rule 462(b) by 10:00 P.M., New York City time, on
the date of this Agreement and to pay to the Commission the filing fee for such
Rule 462(b) Registration Statement at the time of the filing thereof or to give
irrevocable instructions for the payment of such fee pursuant to Rule 111(b)
under the Act.
SECTION 6. Representations and Warranties of the Company. The
Company represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this
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Agreement); any Rule 462(b) Registration Statement filed after the
effectiveness of this Agreement will become effective no later than 10:00 P.M.,
New York City time, on the date of this Agreement; and no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness of
this Agreement), when it became effective, did not contain and, as amended, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) the Registration Statement (other than
any Rule 462(b) Registration Statement to be filed by the Company after the
effectiveness of this Agreement) and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act,
(iii) if the Company is required to file a Rule 462(b) Registration Statement
after the effectiveness of this Agreement, such Rule 462(b) Registration
Statement and any amendments thereto, when they become effective (A) will not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) will comply in all material respects with the Act and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not apply to
statements or omissions in the Registration Statement or the Prospectus based
upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or omissions
in any preliminary prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(d) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Prospectus and to own,
lease and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be so
qualified would not
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have a material adverse effect on the business, prospects, financial condition
or results of operations of the Company and its subsidiaries, taken as a whole.
(e) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens granted or
issued by the Company or any of its subsidiaries relating to or entitling any
person to purchase or otherwise to acquire any shares of the capital stock of
the Company or any of its subsidiaries, except as disclosed in the
Registration Statement.
(f) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Stockholder) have been duly
authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights; and the Shares to be issued and
sold by the Company have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement, will
be validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(g) All of the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly authorized and validly issued and are
fully paid and non-assessable, and are owned by the Company, directly or
indirectly through one or more subsidiaries, free and clear of any security
interest, claim, lien, encumbrance or adverse interest of any nature except as
disclosed in the Prospectus.
(h) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the performance
of any obligation, agreement, covenant or condition contained in any indenture,
loan agreement, mortgage, lease or other agreement or instrument that is
material to the Company and its subsidiaries, taken as a whole, to which the
Company or any of its subsidiaries is a party or by which the Company or any of
its subsidiaries or their respective property is bound except for such defaults
which, individually or in the aggregate, could not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(j) The execution, delivery and performance of this Agreement by
the Company, the compliance by the Company with all the provisions hereof and
the consummation of the transactions contemplated hereby will not (i) require
any consent, approval, authorization or other order of, or qualification with,
any court or governmental body or agency (except such as may be required under
the securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the charter or by-laws of the Company or any of its subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement or instrument
that is material to the Company and its subsidiaries, taken as a whole, to
which the Company or any
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of its subsidiaries is a party or by which the Company or any of its
subsidiaries or their respective property is bound, (iii) violate or conflict
with any applicable law or any rule, regulation, judgment, order or decree of
any court or any governmental body or agency having jurisdiction over the
Company, any of its subsidiaries or their respective property or (iv) result in
the suspension, termination or revocation of any Authorization (as defined
below) of the Company or any of its subsidiaries or any other impairment of the
rights of the holder of any such Authorization.
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is or could be a
party or to which any of their respective property is or could be subject that
are required to be described in the Registration Statement or the Prospectus
and are not so described; nor are there any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has violated
any foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended,
or the rules and regulations promulgated thereunder, except for such violations
which, singly or in the aggregate, would not have a material adverse effect on
the business, prospects, financial condition or results of operation of the
Company and its subsidiaries, taken as a whole.
(m) Each of the Company and its subsidiaries has such permits,
licenses, consents, exemptions, franchises, authorizations and other approvals
(each, an "AUTHORIZATION") of, and has made all filings with and notices to,
all governmental or regulatory authorities and self-regulatory organizations
and all courts and other tribunals, including, without limitation, under any
applicable Environmental Laws and rules and regulations promulgated by the U.S.
Food and Drug Administration (the "FDA"), as are necessary to own, lease,
license and operate its respective properties and to conduct its business,
except where the failure to have any such Authorization or to make any such
filing or notice would not, singly or in the aggregate, have a material adverse
effect on the business, prospects, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole. Each such Authorization
is valid and in full force and effect and each of the Company and its
subsidiaries is in compliance with all the terms and conditions thereof and
with the rules and regulations of the authorities and governing bodies having
jurisdiction with respect thereto; and no event has occurred (including,
without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such Authorization; and, except as described in
the Prospectus, such Authorizations contain no restrictions that are burdensome
to the Company or any of its subsidiaries; except where such failure to be
valid and in full force and effect or to be in compliance, the occurrence
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of any such event or the presence of any such restriction would not, singly or
in the aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(n) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review, the
Company has reasonably concluded that such associated costs and liabilities
would not singly or in the aggregate, have a material adverse effect on the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(o) In each case, except as described in the Prospectus, the
Company and its subsidiaries have good and marketable title in fee simple to
all real property and good and marketable title to all personal property owned
by them which is material to the business of the Company and its subsidiaries,
in each case free and clear of all liens, encumbrances and defects, or except
as such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries; and any real property and buildings held under
lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exception as would not have a
material adverse effect on the business, prospects, financial condition or
results or operations of the Company and its subsidiaries, taken as a whole.
(p) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all patents, patents rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary of confidential information, systems or procedures),
trademarks, services marks and trade names ("intellectual property") currently
employed by them in connection with the business now operated by them except
where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a material
adverse effect on the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, and neither
the Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any such
intellectual property which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would have a material adverse effect
on the business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole.
(q) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks
and in such amounts as
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are prudent and customary in the businesses in which they are engaged; and
neither the Company nor any of its subsidiaries has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers at a cost
that would not have a material adverse effect on the business, prospects,
financial conditions or results of operations of the Company and its
subsidiaries, taken as a whole.
(r) No "nationally recognized statistical rating organization" as
such term is defined for purposes of Rule 436(f)(2) under the Act has indicated
to the Company that it is considering the downgrading, suspension or withdrawal
of, or any review for a possible change that does not indicate the direction of
the possible change in, any rating assigned to the Company or any securities of
the Company.
(s) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries on the one hand, and the directors,
officers, stockholders, customers or suppliers of the Company or any of its
subsidiaries on the other hand, which is required by the Act to be described in
the Registration Statement or the Prospectus which is not so described.
(t) The pro forma financial statements of the Company and its
subsidiaries and the related notes thereto set forth in the Registration
Statement and the Prospectus (and any supplement or amendment thereto) have
been prepared on a basis consistent with the historical financial statements of
the Company and its subsidiaries (except for the pro forma adjustments
specified therein), give effect to the assumptions used in the preparation
thereof on a reasonable basis and present fairly the historical and proposed
transactions contemplated by the Registration statement and the Prospectus.
Such pro forma financial statements have been prepared in accordance with the
applicable requirements of Rule 11-02 of Regulation S-X promulgated by the
Commission. The other pro forma financial and statistical information and data
set forth in the Registration Statement and the Prospectus (and any supplement
or amendment thereto) are, in all material respects, accurately presented and
prepared on a basis consistent with the pro forma financial statements.
(u) There is no (i) significant unfair labor practice complaint,
grievance or arbitration proceeding pending or to the best knowledge of the
Company threatened against the Company or any of its subsidiaries before the
National Labor Relations Board or any state or local labor relations board,
(ii) strike, labor dispute, slowdown or stoppage pending or to the best
knowledge of the Company threatened against the Company or any of its
subsidiaries or (iii) union representation question existing with respect to
the employees of the Company and its subsidiaries, except for such actions
specified in clause (i), (ii) or (iii) above, which, singly or in the
aggregate, would not have a material adverse effect on the business, prospects,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole.
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(v) The Company and each of its subsidiaries maintains a system or
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principle and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(w) All materials tax returns to be filed by the Company and each
of its subsidiaries in any jurisdiction have been filed, other than those
filings being contested in good faith, and all material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges
due pursuant to such returns or pursuant to any assessment received by the
Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(x) This Agreement has been duly authorized, executed and
delivered by the Company.
(y) Coopers & Xxxxxxx, L.L.P., KPMG Peat Marwick LLP and Xxxxxx
Xxxxxxxx LLP are independent public accountants with respect to the Company and
its subsidiaries as required by the Act.
(z) The consolidated financial statements included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto), together with related schedules and notes, present fairly the
consolidated financial position, results of operations and changes in financial
position of the Company and its subsidiaries on the basis stated therein at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles consistently applied throughout
the periods involved, except as disclosed therein; the supporting schedules, if
any, included in the Registration Statement present fairly in accordance with
generally accepted accounting principles the information required to be stated
therein; and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are, in all material respects, accurately presented and
prepared on the basis of the assumptions described in the Registration
Statement.
(aa) The execution, delivery and performance of each of (i) that
certain Stock Purchase agreement dated as of September 29, 1997 by and between
the AHFP Holding Corporation, the Selling Securityholders named therein and DM
U.S. Holding Corp. and that certain Agreement and Plan of Reorganization dated
as of September 30, 1997 by and between the Company and AHFP Holding
Corporation, (ii) that certain Stock Purchase Agreement by and among the
Company Creative Products, Inc. of Xxxxxxxxx,
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and the individuals listed on Schedule I thereto and [(iii) that certain letter
of intent by and between the Company and Orleans Food Company (collectively,
the "Acquisition Agreements") does not and will not (A) violate, conflict with
or result in the breach of any provision of the Company's articles of
incorporation or by-laws or other organizational documents, as applicable, of
the Company which would have a material adverse effect on the ability of the
Company or any of its subsidiaries to consummate the transactions contemplated
by this Agreement, (B) conflict with or violate any law or governmental order
applicable to the Company or any of its subsidiaries which would have a
material effect on the ability of the Company to consummate the transactions
contemplated by this Agreement or (C) conflict with, or result in any breach
of, constitute a default (or event which with the giving of notice or the lapse
of time, or both, would become a default) under, require any consent under, or
give to others any right of termination, amendment, acceleration, suspension,
revocation, or cancellation of, or result in the creation of any liens,
encumbrances or defects on any of the assets or the properties of the Company
or its subsidiaries pursuant to, any note, bond, mortgage or indenture,
contract, agreement, lease, sublease, license, permit, franchise or other
instrument or arrangement to which the Company or its subsidiaries is a party
or by which any of such assets or properties are bound or affected which would
have a material adverse effect on the ability of the Company to consummate the
transactions contemplated by this Agreement.
(bb) The execution, delivery and performance of each of the
Acquisition Agreements does not and will not require any consent, approval,
authorization or other order of, action by, filing with, or notification to,
any governmental authority or any other third party, except the notification
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder.
(cc) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as described
in the Prospectus, will not be, an "investment company" as such term is defined
in the Investment Company Act of 1940, as amended.
(dd) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement which right has not
been waived.
(ee) Except as disclosed in the Prospectus, since the respective
dates as of which information is given in the Prospectus other than as set
forth in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there has not occurred any
material adverse change or any development
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involving a prospective material adverse change in the condition, financial or
otherwise, or the earnings, business, management or operations of the Company
and its subsidiaries, taken as a whole, (ii) there has not been any material
adverse change or any development involving a prospective material adverse
change in the capital stock or in the long- term debt of the Company or any of
its subsidiaries and (iii) neither the Company nor any of its subsidiaries has
incurred any liability or obligation, direct or contingent which individually
or in the aggregate, could have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(ff) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed
to be a representation and warranty by the Company to the Underwriters as to
the matters covered thereby.
SECTION 7. Representations and Warranties of the Selling
Stockholders. The Selling Stockholder represents and warrants to each
Underwriter that:
(a) The Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder pursuant to this Agreement and has (except
for restrictions pursuant to that certain Agreement of Sale and Plan of Merger
by and among AHP Subsidiary Holding Corporation, American Home Products, Inc.
and AHFP Holding Corporation and AHFP Acquisition Corporation (the "AHP
Agreement"), and on the Closing Date will have, good and clear title to such
Shares, free of all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever (other than restrictions on transfer
imposed by applicable law).
(b) The Shares to be sold by the Selling Stockholder have been
duly authorized and are validly issued, fully paid and non-assessable.
(c) The Selling Stockholder has, and on the Closing Date will
have, full legal right, power and authority to enter into this Agreement, the
Custody Agreement signed by the Selling Stockholder and International Home
Foods, Inc., as Custodian, relating to the deposit of the Shares to be sold by
such Selling Stockholder (the "CUSTODY AGREEMENT") and the Power of Attorney of
the Selling Stockholder appointing certain individuals as the Selling
Stockholder's attorneys-in-fact (the "ATTORNEYS") to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the "POWER OF ATTORNEY") and
to sell, assign, transfer and deliver the Shares to be sold by the Selling
Stockholder in the manner provided herein and therein.
(d) This Agreement has been duly authorized, executed and
delivered by or on behalf of the Selling Stockholder.
(e) The Custody Agreement of the Selling Stockholder has been duly
authorized, executed and delivered by the Selling Stockholder and is a valid
and binding agreement of the Selling Stockholder.
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(f) The Power of Attorney of the Selling Stockholder has been duly
authorized, executed and delivered by the Selling Stockholder and is a valid
and binding instrument of the Selling Stockholder, and, pursuant to such Power
of Attorney, the Selling Stockholder has, among other things, authorized the
Attorneys, or any one of them, to execute and deliver on the Selling
Stockholder's behalf this Agreement and any other document that they, or any
one of them, may deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver the Shares to be
sold by the Selling Stockholder pursuant to this Agreement.
(g) Upon delivery of and payment for the Shares to be sold by the
Selling Stockholder pursuant to this Agreement, assuming that the Underwriters
shall have purchased the Shares to be sold by the Selling Stockholder for value
in good faith and without any adverse claim, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on transfer,
liens, encumbrances, security interests, equities and claims whatsoever.
(h) The execution, delivery and performance of this Agreement and
the Custody Agreement and Power of Attorney of the Selling Stockholder by or on
behalf of the Selling Stockholder, the compliance by the Selling Stockholder
with all the provisions hereof and thereof and the consummation of the
transactions contemplated hereby and thereby will not (i) require any consent,
approval, authorization or other order of, or qualification with, any court or
governmental body or agency (except such as may be required under the
securities or Blue Sky laws of the various states), (ii) conflict with or
constitute a breach of any of the terms or provisions of, or a default under,
the organizational documents of the Selling Stockholder, or any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Selling Stockholder and to which to the Selling Stockholder is a party or
by which the Selling Stockholder or any property of the Selling Stockholder is
bound or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Selling Stockholder or any property of the
Selling Stockholder.
(i) The information in the Registration Statement under the
caption "Principal and Selling Stockholder" which specifically relates to the
Selling Stockholder does not, and will not on the Closing Date, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
(j) At any time during the period described in Section 5(d), if
there is any change in the information referred to in Section 7(i), the Selling
Stockholder will immediately notify you of such change.
(k) Each certificate signed by or on behalf of the Selling
Stockholder and delivered to the Underwriters or counsel for the Underwriters
shall be deemed to be a
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representation and warranty by the Selling Stockholder to the Underwriters as
to the matters covered thereby.
SECTION 8. Indemnification of QIU. (a) The Company agrees to
indemnify and hold harmless the QIU, its directors, its officers and each
person, if any, who controls the QIU within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all losses,
claims, damages, liabilities and judgments (including, without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action, that could give rise to any such losses,
claims, damages, liabilities or judgments) related to, based upon or arising
out of (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or (ii) the QIU's activities as QIU under its engagement
pursuant to Section 2 hereof, except in the case of this clause (ii) insofar
as any such losses, claims, damages, liabilities or judgments are found in a
final judgment by a court of competent jurisdiction, not subject to further
appeal, to have resulted solely from the willful misconduct or gross negligence
of the QIU.
(b) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) (the "QIU
INDEMNIFIED PARTY"), the QIU Indemnified Party shall promptly notify the
Company in writing and the Company shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the QIU
Indemnified Party and the payment of all fees and expenses of such counsel, as
incurred. Any QIU Indemnified Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the QIU Indemnified
Party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the Company, (ii) the Company shall have failed to
assume the defense of such action or employ counsel reasonably satisfactory to
the QIU Indemnified Party or (iii) the named parties to any such action
(including any impleaded parties) include both the QIU Indemnified Party and
the Company, and the QIU Indemnified Party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the Company (in which case
the Company shall not have the right to assume the defense of such action on
behalf of the QIU Indemnified Party). In any such case, the Company shall not,
in connection with any one action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all QIU
Indemnified Parties, which firm shall be designated by the QIU, and all such
fees and expenses shall be reimbursed as they are incurred. The Company shall
indemnify and hold harmless the QIU Indemnified Party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the
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settlement is entered into more than twenty business days after the Company
shall have received a request from the QIU Indemnified Party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses
are at the expense of the Company) and, prior to the date of such settlement,
the Company shall have failed to comply with such reimbursement request. The
Company shall not, without the prior written consent of the QIU Indemnified
Party, effect any settlement or compromise of, or consent to the entry of
judgment with respect to, any pending or threatened action in respect of which
the QIU Indemnified Party is or could have been a party and indemnity or
contribution may be or could have been sought hereunder by the QIU Indemnified
Party, unless such settlement, compromise or judgment (i) includes an
unconditional release of the QIU Indemnified Party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the QIU Indemnified Party.
(c) To the extent the indemnification provided for in this Section 8
is unavailable to a QIU Indemnified Party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then the
Company, in lieu of indemnifying such QIU Indemnified Party, shall contribute
to the amount paid or payable by such QIU Indemnified Party as a result of such
losses, claims, damages, liabilities and judgments (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the QIU on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 8(c)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 8(c)(i) above but also the relative fault of the
Company on the one hand and the QIU on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the QIU on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received
by the Company as set forth in the table on the cover page of the Prospectus,
and the fee received by the QIU pursuant to Section 2 hereof, bear to the sum
of such total net proceeds and such fee. The relative fault of the Company on
the one hand and the QIU on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the QIU and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission and whether the QIU's activities as QIU
under its engagement pursuant to Section 2 hereof involved any willful
misconduct or gross negligence on the part of the QIU.
The Company and the QIU agree that it would not be just and equitable
if contribution pursuant to this Section 8(c) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or
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payable by a QIU Indemnified Party as a result of the losses, claims, damages,
liabilities or judgments referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses incurred by such QIU Indemnified Party in connection
with investigating or defending any matter, including any action, that could
have given rise to such losses, claims, damages, liabilities or judgments. 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.
(d) The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
QIU Indemnified Party at law or in equity.
SECTION 9. Indemnification. (a) The Company agrees to indemnify
and hold harmless each Underwriter, its directors, its officers and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action, that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), the Prospectus (or any amendment or supplement thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use therein; provided, however, that
the foregoing indemnity agreement with respect to any preliminary prospectus
shall not inure to the benefit of any Underwriter from whom the person
asserting any such losses, claims, damages and liabilities and judgments
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery) was not
sent or given by or on behalf of such Underwriter to such person, if required
by law so to have been delivered, at or prior to the written confirmation of
the sale of the Shares to such person, and if the Prospectus (as so amended and
supplemented) would have cured the defect giving rise to such loss, claim,
damage, liability or judgment.
(b) The Selling Stockholder agrees to indemnify and hold harmless
each Underwriter, its directors, its officers and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
from and against any and all
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losses, claims, damages, liabilities and judgments (including, without
limitation, any legal or other expenses incurred in connection with
investigating or defending any matter, including any action, that could give
rise to any such losses, claims, damages, liabilities or judgments) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriter
furnished in writing to the Company by such Underwriter through you expressly
for use therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages and
liabilities and judgments purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto to the
several Underwriters in the requisite quantity and on a timely basis to permit
proper delivery) was not sent or given by or on behalf of such Underwriter to
such person, if required by law so to have been delivered, at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended and supplemented) would have cured the defect giving
rise to such loss, claim, damage, liability or judgment. Notwithstanding the
foregoing, the aggregate liability of the Selling Stockholder pursuant to this
Section 9(b) shall be limited to an amount equal to the total proceeds (before
deducting expenses) received by the Selling Stockholder from the Underwriters
for the sales of the Shares sold by the Selling Stockholder hereunder.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
the Selling Stockholder and each person, if any, who controls the Selling
Stockholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Sellers to
such Underwriter but only with reference to information relating to such
Underwriter furnished in writing to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment thereto), the
Prospectus (or any amendment or supplement thereto) or any preliminary
prospectus.
(d) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 9(a), 9(b) or 9(c)
(the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which
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indemnity may be sought pursuant to each of Sections 9(a), 9(b) and 9(c) the
Underwriter shall not be required to assume the defense of such action pursuant
to this Section 8(d), but may employ separate counsel and participate in the
defense thereof, but the fees and expenses of such counsel, except as provided
below, shall be at the expense of such Underwriter). Any indemnified party
shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of the indemnified party unless (i) the employment of
such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to assume the
defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different
from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such
action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for (i) the fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all Underwriters, their officers and directors and all
persons, if any, who control any Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, (ii) the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and all persons, if any, who control the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) for all Selling
Stockholders and all persons, if any, who control any Selling Stockholder
within the meaning of either such Section, and all such fees and expenses shall
be reimbursed as they are incurred. In the case of any such separate firm for
the Underwriters, their officers and directors and such control persons of any
Underwriters, such firm shall be designated in writing by Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation. In the case of any such separate firm for
the Company and such directors, officers and control persons of the Company,
such firm shall be designated in writing by the Company. In the case of any
such separate firm for the Selling Stockholder and such control persons of any
Selling Stockholder, such firm shall be designated in writing by the Attorneys
and the Selling Stockholder. The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims,
damages, liabilities and judgments by reason of any settlement of any action
(i) effected with its written consent or (ii) effected without its written
consent if the settlement is entered into more than twenty business days after
the indemnifying party shall have requested from the indemnified party for
reimbursement for the fees and expense of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply
with reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or
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consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
indemnified party, unless such settlement, compromise or judgment includes an
unconditional release of the indemnified party from all liability on claims
that are or could have been the subject matter of such action.
(e) To the extent the indemnification provided for in this Section
9 is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause 9(e)(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 9(e)(i) above
but also the relative fault of the Sellers on the one hand and the Underwriters
on the other hand in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the
Sellers on the one hand and the Underwriters on the other hand shall be deemed
to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Sellers, and the total underwriting
discounts and commissions received by the Underwriters, bear to the total price
to the public of the Shares, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Sellers on the one
hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Selling Stockholders on
the one hand or the Underwriters on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any matter,
including any action, that could have given rise to such losses, claims,
damages, liabilities or judgments. Notwithstanding the provisions of this
Section 9, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds
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the amount of any damages which such Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 12(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 pursuant to this Section 9(e) are several in
proportion to the respective number of Shares purchased by each of the
Underwriters hereunder and not joint.
(f) The remedies provided for in this Section 9 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
SECTION 10. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares under this
Agreement are subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date.
(b) If the Company is required to file a Rule 462(b) Registration
Statement after the effectiveness of this Agreement, such Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M., New York City
time, on the date of this Agreement; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) You shall have received on the Closing Date a certificate
dated the Closing Date, signed by the Chairman and Chief Executive Officer and
President of the Company, confirming the matters set forth in Sections 6(t),
10(a) and 10(b) and that the Company has complied with all of the agreements
and satisfied all of the conditions herein contained and required to be
complied with or satisfied by the Company on or prior to the Closing Date.
(d) Except as disclosed in the Prospectus, since the respective
dates as of which information is given in the Prospectus other than as set
forth in the Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), (i) there shall not have occurred
any change or any development involving a prospective change in the condition,
financial or otherwise, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries shall
have incurred any liability or obligation, direct or contingent, the effect of
which, in any such described in clause 10(d)(i), 10(d)(ii) or 10(d)(iii), in
your judgment, has or would have a material adverse
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effect on the business, prospects financial condition or results of operations
of the Company and its subsidiaries taken as a whole and, in your judgment,
makes it impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx & Xxxxxx L.L.P., counsel for the Company, to the effect that:
(i) the Company has been duly incorporated and
each of the Company, I.H.F.P., Inc., a Delaware corporation,
X. Xxxxxxx, Inc., a Delaware corporation, Heritage Brands
Holdings, Inc., a Delaware corporation, Heritage Brands, Inc.,
a Delaware corporation, Campfire, Inc., a Delaware
corporation, Bumble Bee Acquisition Corporation, a Delaware
corporation, BBII Acquisition Corporation, a Delaware
corporation, Creative Products of Rossville, Inc., a Delaware
corporation, Orleans Seafood, Inc., a Delaware corporation,
Luck's Incorporated, a Delaware corporation, and DM U.S.
Holding Corp., a Delaware corporation (collectively the
"Domestic Subsidiaries") is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus and to
own, lease and operate its properties;
(ii) each of the Company and the Domestics
Subsidiaries is duly qualified and is in good standing as a
foreign corporation authorized to do business in each
jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and the
Domestic Subsidiaries, taken as a whole;
(iii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iv) all the outstanding shares of capital stock
of the Company (including the Shares to be sold by the Selling
Stockholder) have been duly authorized and validly issued and
are fully paid, non- assessable and not subject to any
preemptive or similar rights;
(v) the Shares to be issued and sold by the
Company hereunder have been duly authorized and, when issued
and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid
and non-assessable, and the issuance of such Shares will not
be subject to any preemptive or similar rights;
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(vi) all of the outstanding shares of capital
stock of each of the Company's Domestic Subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable, and (except for director's qualifying shares)
are owned by the Company, directly or indirectly through one
or more subsidiaries, and, to the best of such counsel's
knowledge, are free and clear of any security interest, claim,
lien, encumbrance or adverse interest of any nature (other
than liens and security interest created pursuant to the
Senior Bank Facilities or the Indenture (each as defined in
the Prospectus) or law);
(vii) this Agreement has been duly authorized,
executed and delivered by the Company;
(viii) the Registration Statement has become
effective under the Act, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose are, to the best of such counsel's knowledge after due
inquiry, pending before or have been threatened by the
Commission;
(ix) the statements under the captions
"Business-Certain Legal and Regulatory Matters" (other than --
"Food Safety and Labeling" and -- "Federal Trade Commission"),
"Certain Relationships and Related Transactions", "Risk
Factors-Restrictive Debt Covenants", "Risk-Factors - Shares
Eligible for Future Sale, Registration Rights Agreement", and
"Description of Capital Stock", Description of Indebtedness"
and "Underwriting" in the Prospectus and Items 14 and 15 of
Part II of the Registration Statement, insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings;
(x) to the best of such counsel's knowledge after
due inquiry, neither the Company nor any of its Domestic
Subsidiaries is in violation of its respective charter or
by-laws and, to the best of such counsel's knowledge after due
inquiry, neither the Company nor any of its Domestic
Subsidiaries is in default in the performance of any
obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement
or other instrument to which the Company or any of its
Domestic Subsidiaries is a party or by which the Company or
any of its Domestic Subsidiaries or their respective property
is bound except for such defaults which, individually or in
aggregate could not have a material adverse effect on the
Company and its Domestic Subsidiaries taken as a whole;
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(xi) the execution, delivery and performance of
this Agreement by the Company, the compliance by the Company
with all the provisions hereof and the consummation of the
transactions contemplated hereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the Act or other
securities or Blue Sky laws of the various states), (B)
conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of
the Company or any of its Domestic Subsidiaries or any
indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Company and its Domestic
Subsidiaries, taken as a whole, to which the Company or any of
its Domestic Subsidiaries is a party or by which the Company
or any of its Domestic Subsidiaries or their respective
property is bound, (C) violate or conflict with any applicable
law or any rule, regulation, judgment, order or decree of any
court or any governmental body or agency having jurisdiction
over the Company, any of its Domestic Subsidiaries or their
respective property or (D) result in the suspension,
termination or revocation of any Authorization of the Company
or any of its Domestic Subsidiaries that is material to the
Company and its Domestic Subsidiaries, taken as a whole, or
any other impairment of the rights of the holder of any such
Authorization;
(xii) after due inquiry, such counsel does not know
of any legal or governmental proceedings pending or threatened
to which the Company or any of its Domestic Subsidiaries is or
could be a party or to which any of their respective property
is or could be subject that are required to be described in
the Registration Statement or the Prospectus and are not so
described, or of any statutes, regulations, contracts or other
documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not so
described or filed as required;
(xiii) to the best of such counsel's knowledge after
due inquiry, no relationship, direct or indirect, exists
between or among the Company or any of its Domestic
Subsidiaries on the one hand, and the directors, officers or
stockholders of the Company or any of its subsidiaries on the
other hand, which is required by the Act to be described in
the Registration Statement or the Prospectus which is not so
described;
(xiv) to the best of such counsel's knowledge after
due inquiry, the execution delivery and performance by the
Company of each of the Acquisition Agreements does not and
will not (A) violate, conflict with or result in the breach of
any provision of the Company's articles of incorporation or
by-laws or other organizational documents, as applicable, of
the Company which would have a material adverse effect on the
ability
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of the Company or any of its Domestic Subsidiaries to
consummate the transactions contemplated by this Agreement,
(B) conflict with or violate any law or governmental order
applicable to the Company or any of its subsidiaries which
would have a material effect on the ability of the Company to
consummate the transactions contemplated by this Agreement or
(C) conflict with, or result in any breach of, constitute a
default (or event which with the giving of notice or the lapse
of time, or both, would become a default) under, require any
consent under, or give to others any right of termination,
amendment, acceleration, suspension, revocation, or
cancellation of, or result in the creation of any liens,
encumbrances or defects on any of the assets or the properties
of the Company or its Domestic Subsidiaries pursuant to, any
note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or
arrangement to which the Company or its Domestic Subsidiaries
is a party or by which any of such assets or properties are
bound or affected which would have a material adverse effect
on the ability of the Company to consummate the transactions
contemplated by this Agreement.
(xv) The execution, delivery and performance of
each of the Acquisition Agreements does not and will not
require any consent, approval, authorization or other order
of, action by, filing with, or notification to, any
governmental authority or any other third party, except the
notification requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended, and the rules and
regulations promulgated thereunder.
(xvi) the Company is not and, after giving effect
to the offering and sale of the Shares and the application of
the proceeds thereof as described in the Prospectus, will not
be, an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended;
(xvii) except as described in the Registration
Statement, to the best of such counsel's knowledge after due
inquiry, there are no contracts, agreements or understandings
between the Company and any person granting such person the
right to require the Company to file a registration statement
under the Act with respect to any securities of the Company or
to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement that
have not been waived in connection with the offering;
In addition to the matters set forth above, such opinion shall include
a statement that the Registration Statement and the Prospectus and any
supplement or amendment thereto (except for the financial statements and other
financial data and statistical information and data included therein as to
which no opinion need be expressed) comply
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as to form in all material respects with the Act, (B) such counsel has no
reason to believe that at the time the Registration Statement became effective
or on the date of this Agreement, the Registration Statement and the prospectus
included therein (except for the financial statements and other financial data
and statistical information and data as to which such counsel need not express
any belief) contained 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 (C) such counsel has no reason to believe
that the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial data and statistical information and
data, as aforesaid) contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The opinion of Xxxxxx & Xxxxxx L.L.P. described in Section 10(e) above
shall be rendered to you at the request of the Company and shall so state
therein.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxx X. Xxxxxx, Xx., General Counsel, counsel for the Selling Stockholder,
to the effect that:
(i) the Selling Stockholder is the lawful owner
of the Shares to be sold by the Selling Stockholder pursuant
to this Agreement and has good and clear title to such Shares,
free of all restrictions on transfer, liens, encumbrances,
security interests, equities and claims whatsoever;
(ii) the Selling Stockholder has full legal right,
power and authority, and all authorization and approval
required by law, to enter into this Agreement and the Custody
Agreement and the Power of Attorney of the Selling Stockholder
and to sell, assign, transfer and deliver the Shares to be
sold by the Selling Stockholder in the manner provided herein
and therein;
(iii) the Custody Agreement of the Selling
Stockholder has been duly authorized, executed and delivered
by the Selling Stockholder and is a valid and binding
agreement of the Selling Stockholder;
(iv) the Power of Attorney of the Selling
Stockholder has been duly authorized, executed and delivered
by the Selling Stockholder and is a valid and binding
instrument of the Selling Stockholder, and, pursuant to such
Power of Attorney, the Selling Stockholder has, among other
things, authorized the Attorneys, or any one of them, to
execute and deliver on the Selling Stockholder's behalf this
Agreement and any other document they, or any one of them, may
deem necessary or desirable in connection with the
transactions contemplated hereby and thereby and to deliver
the Shares to be sold by the Selling Stockholder pursuant to
this Agreement;
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(v) upon delivery of and payment for the Shares
to be sold by the Selling Stockholder pursuant to this
Agreement, assuming that the Underwriters shall have purchased
the Shares to be sold by the Selling Stockholder for value in
good faith and without any adverse claim, good and clear title
to such Shares will pass to the Underwriters, free of all
restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever; and
(vi) the execution, delivery and performance of
this Agreement and the Custody Agreement and Power of Attorney
of the Selling Stockholder by the Selling Stockholder, the
compliance by the Selling Stockholder with all the provisions
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not (A) require any
consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency
(except such as may be required under the securities or Blue
Sky laws of the various states), (B) conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, the organizational documents of the Selling
Stockholder, if the Selling Stockholder is not an individual,
or any indenture, loan agreement, mortgage, lease or other
agreement or instrument that is material to the Selling
Stockholder to which the Selling Stockholder is a party or by
which any property of the Selling Stockholder is bound or (C)
violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over the
Selling Stockholder or any property of the Selling
Stockholder; and
(vii) This Agreement has been dully authorized,
executed and delivered by or on behalf of the Selling
Stockholder.
The opinion of Xxxxx X. Xxxxxx, Xx. described immediately
above shall be rendered to you at the request of the Selling Stockholder and
shall so state therein. In giving such opinions with respect to matters
covered immediately above counsel for the Selling Stockholder may state its
opinion and belief that its opinion and belief is based upon its participation
in the preparation of the Registration Statement and Prospectus and any
amendment or supplements thereto and review and discussion of the contents
thereto, but are without check or verification except as specified.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing Date,
of Xxxxxx Xxxxx, Esq., General Counsel of the Company, to the effect that:
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(i) neither the Company nor any of its
subsidiaries has violated any Environmental Law or any
provisions of the Employee Retirement Income Security Act of
1974, as amended, or the rules and regulations promulgated
thereunder, except for such violations which, singly or in the
aggregate, would not have a material adverse effect on the
business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a
whole;
(ii) each of the Company and its subsidiaries has
such Authorizations of, and has made all filings with and
notices to, all governmental or regulatory authorities and
self-regulatory organizations and all courts and other
tribunals, including, without limitation, under any applicable
Environmental Laws or the FDA, as are necessary to own, lease,
license and operate its respective properties and to conduct
its business, except where the failure to have any such
Authorization or to make any such filing or notice would not,
singly or in the aggregate, have a material adverse effect on
the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a
whole; each such Authorization is valid and in full force and
effect and each of the Company and its subsidiaries is in
compliance with all the terms and conditions thereof and with
the rules and regulations of the authorities and governing
bodies having jurisdiction with respect thereto; and no event
has occurred (including, without limitation, the receipt of
any notice from any authority or governing body) which allows
or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such
Authorization or results or, after notice or lapse of time or
both, would result in any other impairment of the rights of
the holder of any such Authorization; and such Authorizations
contain no restrictions that are burdensome to the Company or
any of its subsidiaries; except where such failure to be valid
and in full force and effect or to be in compliance, the
occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a
material adverse effect on the business, prospects, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole;
(iii) the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all patents,
patents rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or
unpatentable proprietary of confidential information, systems
or procedures), trademarks, services marks and trade names
("intellectual property") currently employed by them in
connection with the business now operated by them except where
the failure to own or possess or otherwise be able to acquire
such intellectual property would not, singly or in the
aggregate, have a material adverse effect on the business,
prospects, financial condition or results of operation of the
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Company and its subsidiaries, taken as a whole, and neither
the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of
others with respect to any such intellectual property which,
singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would have a material adverse
effect on the business, prospects, financial condition or
results of operations of the Company and its subsidiaries,
taken as a whole;
(iv) the statements under the captions "Business -
Certain Legal and Regulatory Matters - Food Safety and
Labeling" and "Federal Trade Communication" insofar as such
statements constitute a summary of the legal matters,
documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings.
The opinion of the General Counsel of the Company described in Section
10(g) above shall be rendered to you at the request of the Company and shall so
state therein.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel for the
Underwriters, as to the matters referred to in Sections 10(e)(iv), 10(e)(vi)
(but only with respect to the Company), 10(e)(ix) (but only with respect to the
statements under the caption "Description of Capital Stock" and "Underwriting")
and 10(e)(xvii).
In giving such opinions with respect to the matters covered by Section
10(e)(xvii), counsel for the Underwriters may state that their opinion and
belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and review and discussion of the contents thereof, but are without independent
check or verification except as specified.
(i) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as the case
may be, in form and substance satisfactory to you, from Coopers & Xxxxxxx,
L.L.P., KPMG Peat Marwick LLP and Xxxxxx Xxxxxxxx LLP, independent public
accountants, with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus and
substantially in the form and substance of the letters delivered to you by such
independent public accountants on the date of this Agreement.
(j) The Company shall have delivered to you the agreements
specified in Section 2 hereof which agreements shall be in full force and
effect on the Closing Date.
(k) The Shares shall have been duly listed, subject to notice of
issuance, on the NYSE.
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(l) The Company and the Selling Stockholder shall not have failed
on or prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the Company
or the Selling Stockholders, as the case may be, on or prior to the Closing
Date.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
Furthermore, all the representations and warranties of the Selling
Stockholder contained in this Agreement shall be true and correct in all
material respects on the Option Closing Date with the same force and effect as
if made on and as of the Option Closing Date and you shall have received on the
Closing Date a certificate dated the Option Closing Date from the Selling
Stockholder to such effect and to the effect that the Selling Stockholder has
complied with in all material respects all of the agreements (and satisfied all
of the conditions herein contained) and required to be complied with or
satisfied by the Selling Stockholder on or prior to the Option Closing Date.
SECTION 11. Effectiveness of Agreement and Termination. This
Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated at any time on or prior to the
Closing Date by you by written notice to the Sellers if any of the following
has occurred: (i) any outbreak or escalation of hostilities or other national
or international calamity or crisis or change in economic conditions or in the
financial markets of the United States or elsewhere that, in your judgment, is
material and adverse and, in your judgment, makes it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus, (ii)
the suspension or material limitation of trading in securities or other
instruments on the New York Stock Exchange, the American Stock Exchange, the
Chicago Board of Options Exchange, the Chicago Mercantile Exchange, the Chicago
Board of Trade or the Nasdaq National Market or limitation on prices for
securities or other instruments on any such exchange or the Nasdaq National
Market, (iii) the suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole, (v) the declaration of a
banking moratorium by either federal or New York State authorities or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your opinion has a material
adverse effect on the financial markets in the United States.
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If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it has or they have
agreed to purchase hereunder on such date and the aggregate number of Firm
Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the total number of Firm Shares or Additional Shares,
as the case may be, to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated severally, in the proportion
which the number of Firm Shares set forth opposite its name in Schedule II and
Schedule III bears to the total number of Firm Shares which all the
non-defaulting Underwriters have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Shares or Additional
Shares, as the case may be, which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase on such date; provided that in no
event shall the number of Firm Shares or Additional Shares, as the case may be,
which any Underwriter has agreed to purchase pursuant to Section 2 hereof be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Firm Shares or Additional Shares, as the case may be, without
the written consent of such Underwriter. If on the Closing Date any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and
the aggregate number of Firm Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Firm Shares to be purchased
by all Underwriters and arrangements satisfactory to you, the Company and the
Selling Stockholders for purchase of such Firm Shares are not made within 48
hours after such default, this Agreement will terminate without liability on
the part of any non- defaulting Underwriter, the Company or the Selling
Stockholders. In any such case which does not result in termination of this
Agreement, either you or the Sellers shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or
any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional Shares and the aggregate number of Additional Shares with respect
to which such default occurs is more than one-tenth of the aggregate number of
Additional Shares to be purchased on such date, the non-defaulting Underwriters
shall have the option to (i) terminate their obligation hereunder to purchase
such Additional Shares or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase on such date in the absence of such default. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liability in
respect of any default of any such Underwriter under this Agreement.
SECTION 12. Agreements of the Selling Stockholder. The Selling
Stockholder agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes payable in
connection with the transfer of the Shares to be sold by the Selling
Stockholder to the Underwriters.
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(b) To do and perform all things to be done and performed by the
Selling Stockholder under this Agreement prior to the Closing Date and to
satisfy all conditions precedent to the delivery of the Shares to be sold by
the Selling Stockholder pursuant to this Agreement.
SECTION 13. Miscellaneous. Notices given pursuant to any
provision of this Agreement shall be addressed as follows: (i) if to the
Company, to International Home Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000, (ii) if to the Selling Stockholder, to C. Xxxx Xxxxxxxxxxx,
Xxxx X. Xxxx, N. Xxxxxxx Xxxx, and Xxxxx Misericordia c/o International Home
Foods, Inc., 0000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 with a copy to
Xxxxxxx Xxxxxxx c/o American Home Products Corporation, 0 Xxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxxxx 00000 and (iii) if to any Underwriter or to you, to you
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such
other address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Selling Stockholder and the
several Underwriters set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Shares, regardless of (i) any investigation, or statement as to
the results thereof, made by or on behalf of any Underwriter, the officers or
directors of any Underwriter, any person controlling any Underwriter, any QIU
Indemnified Party, the Company, the officers or directors of the Company, any
person controlling the Company, any Selling Stockholder or any person
controlling the Selling Stockholder, (ii) acceptance of the Shares and payment
for them hereunder and (iii) termination of this Agreement.
If for any reason the Shares are not delivered by or on behalf of any
Seller as provided herein (other than as a result of any termination of this
Agreement pursuant to Section 11), the Sellers agree, jointly and severally, to
reimburse the several Underwriters for all out-of-pocket expenses (including
the fees and disbursements of counsel) incurred by them. Notwithstanding any
termination of this Agreement, the Company shall be liable for all expenses
which it has agreed to pay pursuant to Section 5(i) hereof. The Sellers also
agree, jointly and severally, to reimburse the several Underwriters, their
directors and officers, any persons controlling any of the Underwriters and the
QIU Indemnified Parties for any and all fees and expenses (including, without
limitation, the fees disbursements of counsel) incurred by them in connection
with enforcing their rights hereunder (including, without limitation, pursuant
to Section 8 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Selling
Stockholders, the Underwriters, the Underwriters' directors and officers, any
controlling persons referred to herein, QIU Indemnified Parties the Company's
directors and the Company's officers who sign the Registration Statement and
their respective successors and assigns, all as and to the extent provided in
this Agreement, and no other person shall acquire or have
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any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Shares from any of the
several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Stockholders and the several Underwriters.
Very truly yours,
INTERNATIONAL HOME FOODS, INC.
By:
-------------------------------------
Title:
AHP SUBSIDIARY HOLDING CORPORATION
By:
-------------------------------------
Attorney-in-fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
BT ALEX. XXXXX INCORPORATED
CHASE SECURITIES, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX XXXXX & CO.
XXXXXX XXXXXXX,
XXXX XXXXXX, DISCOVER & CO.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule II hereto
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By XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------------
XXXXXXXXX, LUFKIN & XXXXXXXX
INTERNATIONAL
BT ALEX, XXXXX INTERNATIONAL
CHASE MANHATTAN LIMITED
INTERNATIONAL
CREDIT SUISSE FIRST BOSTON
(EUROPE) LIMITED
XXXXXXX, XXXXX INTERNATIONAL
XXXXXX XXXXXXXX & CO. INTERNATIONAL
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule II hereto
By: XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-------------------------------
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SCHEDULE I
Selling Stockholder
Number of Firm
Name Shares Being Sold
---- -----------------
AHP Subsidiary Holding Corporation
--------
Total
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SCHEDULE II
Number of Firm Shares
U.S. Underwriters to be Purchased
----------------- ---------------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation . . . . . . . . . . . . . . . . . . . . . . . . .
BT Alex. Xxxxx Incorporated . . . . . . . . . . . . . . . . . . .
Chase Securities, Inc. . . . . . . . . . . . . . . . . . . . . .
Credit Suisse First Boston Corporation . . . . . . . . . . . . .
Xxxxxxx, Xxxxx & Co. . . . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . . . .
----------
Sub Total 10,898,000
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SCHEDULE III
Number of Firm Shares
International Managers to be Purchased
---------------------- ---------------------
Xxxxxx, Lufkin & Xxxxxxxx
International Limited . . . . . . . . . . . . . . . . . . . . .
BT Alex. Xxxxx International . . . . . . . . . . . . . . . . . .
Chase Manhattan International Limited . . . . . . . . . . . . . .
Credit Suisse First Boston (Europe) Limited . . . . . . . . . . .
Xxxxxxx, Xxxxx International . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. International . . . . . . . . . . . . . . .
---------
Sub Total 2,754,500
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Annex I
[Insert names of stockholders of the Company who will be required to sign lock
ups]
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